Category: Counter-Terrorism

Data Retention and Counter-Terrorism

Since April 2014 data retention has been a high-profile topic in counter-terrorism. This is because the decision by the CJEU to strike down the Data Retention Directive (summary) brought to the fore a tension between (some) states’ desire for wide-reaching data retention powers, and concerns about the implications of such an approach for privacy and other civil liberties. In the meantime some non-EU states–notably the US and Australia–have been exploring ways of having telecommunications companies or other entities retain ‘metadata’ that the state could then access for investigatory reasons in particular situations. Data retention was one of the early ‘desk’ case studies in the SECILE project, and the report is available here. Since April, I have also written a number of blog commentaries on data retention for The Conversation and Oxford Human Rights Hub:

Will Australia Learn from the EU’s Mistakes on Data Retention?

Theresa May says the UK is not a surveillance state, but her proposed law might create one

Europe got phone spying wrong, now Obama should take heed

Data retention means you are on the record, like it or not

As the surge for data retention powers seems to continue, and to be presented as a core counter-terrorism power, it is apposite to bear in mind the Court of Justice’s warning on metadata. The Court note that such data retention constitutes a prima facie interference with fundamental rights, not least because so-called ‘metadata’ “may allow very precise conclusions to be drawn concerning…private lives”. The question facing policy makers now is how to limit collection of and access to data effectively in order to ensure that countering terrorism does not gives states the power to intrude on the privacy of all.

The ‘Impact’ of EU Counter-Terrorism

I am on my way to Barcelona where I will be presenting a paper drawing on our work in SECILE on the impact of EU counter-terrorism at the 2014 Surveillance Society Network conference. The paper outlines the ways in which ‘impact’ is factored into EU counter-terrorist law-making and critiques this using the recently struck-down EU Data Retention Directive as a case study.

When making new law, the EU takes the prospective impact of this law into account. This is now done by means of an ex ante impact assessment overseen by the Commission in which economic, social and environmental impacts of potential proposals are outlined and considered. These impact assessments first identify the problem to be addessed and then propose and assess a number of potential solutions, all of which are generated with the input of ‘key stakeholders’. In addition, in at least some cases, a further ex ante stage arises in public consultation or consideration by Euroean Parliament committee(s). Once operational there is sometimes–but not often–a formal ex post facto review, which often refers back to the ex ante impact assessment for its reference points. Finally, there is incidental impact assessment by means of litigation.

In all of these stages key questions that appear to be addressed in whether or not the solution proposed is necessary and proportionate to address the identified challenge. However, in both the ex ante and ex post facto Commission-led assessments the proportionality assessment in particular appears to place more weight on economic and operational factors–which are considered at length–than on rights-based assessments, which seem to get a lighter treatment. Although incidental impact assessment is highly legalistic (and therefore arguably ‘misses’ non legal factors to some extent) it appears to place more weight on rights-related factors. These impressions are borne out in the example of the EU Data Retention Directive.

I look forward to presenting this in more detail and depth tomorrow (14:45 ‘Terrorism’ session). I will also be presenting a further, longer and more detailed version of the paper at the LSA in Minneapolis at the end of May.

Latest Publication: Guantánamo Bay and Constitutionalism

I am delighted to see the publication of David Jenkins, Anders Henriksen & Amanda Jacobsen (eds), The Long Decade: How 9/11 Has Changed the Law by Oxford University Press this week. This collection emanates from what was an extremely stimulating workshop at the University of Copenhagen some years ago, where the implications for law (in the United States but also more generally) were explored by a large group of us assembled for the task. My chapter in the collection is entitled ‘Guantánamo Bay, the Rise of Courts and the Revenge of Politics’, and the abstract is below. An earlier version can be downloaded on SSRN.

Although a core part of Barak Obama’s election platform, the closure of Guantánamo Bay has proven more difficult to bring about than anticipated. This difficulty has primarily emanated from the persistent opposition to closure found within the United States Congress and given practical effect through legislative measures that make closure difficult, if not impossible. Understanding this divergence between Executive policy and Congressional preferred outcomes in the national security arena requires us to ask a simple question, which lies at the core of this paper: is Congress acting in a purely political or a politically constitutionalist manner? In other words, is this merely a question of politics or is Congress using Guantánamo Bay as the site upon which to sketch its vision of the appropriate relationship between different organs of government? That question takes on an added level of resonance in the context of Guantánamo Bay because of the series of US Supreme Court cases making it clear that the detention centre there is subject to law and, more specifically, to constitutional and constitutionalist limits. In this short essay, I address this question and argue that, rather than communicating a grand constitutional message, Congressional obstructionism in this context is politics as usual and should be understood as such.

Hybridity: What Does it Have to offer?

I spent last Thursday at a workshop on ‘hybridity’ run by Rosa Freedman and Nicholas Lemay-Hebert at the Institute of Advanced Studies in the University of Birmingham. Along with a wide range of scholars from across the humanities and social sciences, I spent the day wondering about the meaning and utility of the concept. We started with a set of panels exploring the concept across a number of different contexts: migration, political science, law, literature and plenty of classics (Here are the slides from my presentation: FdLHYBRIDITY-1). Before going I was somewhat skeptical about hybridity. I must admit I retain a good deal of that skepticism, but I do think there are two potentially useful ways of thinking about hybridity that I explore below.

Continue reading “Hybridity: What Does it Have to offer?”