Terrorist Tracking Could Open Europe To US Spying

Europol has refused to disclose details of the implementation of a controversial EU-US agreement which could render European companies open to industrial espionage. Civil liberties groups have warned that this is a dangerous precedent and shows international policing becoming opaque, even to the government involved.

Under the agreement, US officials can access data covering the personal records of financial transactions of suspected terrorists. Peter Schaar, the German federal commissioner for data protection and freedom of information – and a member of the joint supervisory body of the European Police Office, Europol – asked how much information is being divulged under the agreement. Europol refused to answer, even to its own advisory body, saying it is up to the European Commission to furnish the details.

Europol won’t even talk to its advisors

Follow-up requests to the EC were met with a written statement that said “neither the Commission, nor Europol, nor the member states had the legal power to interpret the agreement” and a suggestion that a workshop on the question should be organised.

A subsequent report from the German delegation (EU 6266/11) stated: “Germany is deeply concerned about this information policy. Repeatedly sidestepping questions, or not answering them at all, will raise further questions and add to growing scepticism. Moreover, MPs and journalists will likely point out this issue to one another, as has already happened in Germany and is probably happening also in other Member States.”

The Terrorist Finance Tracking Programme (SWIFT) Agreement, passed by the EU last July, allows the US to access transactional information held within the records of the Society for Worldwide Interbank Financial Telecommunication (SWIFT) system. SWIFT is a secure network and standardised syntax for transmitting messages between financial institutions which is used by most European banks.

TFTP (SWIFT) was passed in a second draft after several MEPs objected to the wide-ranging powers it gave to US investigators. One particular problem was that the initial draft did not limit how much information was transferred and a clause banning bulk transfer of information was requested. The final wording appears to comply but is ineffectual because of the technical setup of the SWIFT system.

The crux of the problem is that data searches can not be limited to specific individuals or single transactions within SWIFT. Privacy group European Data Rights (EDRi) has stated that this implies that SWIFT has to transfer data about all transactions from a certain country, or a certain bank, on a certain date. This implies that sensitive business data may incidentally and covertly be being passed to the US.

“There have been reports that the US Treasury has received up to 25 percent of all SWIFT transactions, which number in the billions each year. This is not proportionate to the purpose and also puts the EU in danger of economic espionage,” EDRi claimed.

On January 25 the Financial Times Deuschland asked Europol if the US had requested data under the Agreement before the EU scrutineer, the official who assesses SWIFT access requests, started work last August. The newspaper was rebuffed: “Europol explained that all documents concerning the TFTP Agreement were now ‘top secret’ so that no information could be provided,” it said.

Tony Bunyan, director of civil liberty group Statewatch, commented, “If Europol is saying that the information requested is classified as Top Secret, this is an abuse of the EU’s classified information system.”

The German delegation also expressed their deep concern: “The European Commission’s opinion that neither the Commission, nor Europol, nor the Member States have the power to bindingly interpret the agreement is not helpful in the political discussion about the interpretation and application of the agreement. This opinion will lead to growing public mistrust towards the agreement and its effects.”

Bunyan finds the opacity of the TPTP (SWIFT) Agreement to be a worrying development that must be corrected for everyone’s benefit.

“The agreement was negotiated in secret. Now it seems it is to be implemented in secret – out of sight of governments, parliaments and people. This sets a very dangerous precedent for future agreements with the USA,” he warned.