• Home /
• Statewatch Database /
• EU: The “principle of availability” takes over from the “notion of privacy”: what price data protection?

EU: The “principle of availability” takes over from the “notion of privacy”: what price data protection?

01 November 2004

The Hague Programme adopted at the EU Summit on 5 November 2004 says that from 1 January 2008 the "principle of availability" - which simply means if data is held then it can be shared between law enforcement agencies - will become the guiding light for access to personal data held by national law enforcement agencies in other EU member states.

The European Commission is charged with preparing a proposal to implement "the principles of availability" including the following key conditions:

1) exchange of data can only take place so that "legal tasks may be performed" - "legal tasks" is extremely broad and is clearly intended to extend beyond gathering evidence for presentation in a specified court case; 2) "the need to protect source of information"; and 3) "individuals must be protected from abuse of data and have the right to seek correction of incorrect data" - but how will individuals be able to correct law enforcement agencies' files unless they are given full access to them and know who has accessed their data and how it has been used?

The Hague Programme says that "new technology" must be fully employed and the means of "exchange" of personal data between agencies could be through:

a) "reciprocal access to... national databases"
b) "the interoperability of... national databases" (all agencies have access to each others data)
c) "direct online access.. to existing central EU databases such as the SIS"

European Data Protection Commissioners

On 14 September 2004 the European Data Protection Commissioners met in Wroclaw, Poland and adopted a Resolution to set up a "joint EU forum on data protection in police and judicial cooperation matters (data protection in the third pillar)". The Resolution says that in contrast to the "first pillar" (economic and social issues) where the Article 29 Working Party is in place, there is no equivalent to cover the "third pillar". The three joint supervisory bodies covering Europol, Schengen and Eurojust have specific mandates and "a broader approach is required to secure a uniform level of data protection safeguards for the whole area of police and judicial cooperation".

The creation of a parallel group to the Article 29 Working Group covering the "third pillar" would fill a gap in the role of data protection commissioners. However, it is only part of the answer as the Opinions of the Article 29 Working Party are often simply ignored by the Council and Commission. European Parliament reports do take notice of the Working Party's Opinions but at present their views on "third pillar" issues are also routinely ignored.

The three supervisory bodies (Europol, Eurojust and Schengen) have submitted evidence to the UK House of Lords Select Committee on the European Union's inquiry into EU counter-terrorism activities. They say that "large quantities of personal data for intelligence and law enforcement agencies" are being processed "in the fight against terrorism and serious crime". Recent proposals involve the:

processing of personal data from different sources on an unprecedented scale

The retention of communications data and the passing of passenger data to the USA are examples of a "new trend involving the collection of information on individuals (and not only suspects)".

The EU supervisory bodies say that the gathering of data on individuals is not isolated to one or two agencies but "involves a huge number of agencies throughout the EU". Their experience in trying to assess the Europol-USA agreement showed that trying to limit the number of agencies who have access to personal data is difficult if not impossible: "in the USA some 1,500 authorities on Federal, State and community level are involved in dealing with criminal offences including terrorism".

The exchange of data on the scale proposed: "often involving processing of information on those who are not suspected of any crime" requires, they say, "purpose restriction