The EU Data Retention Directive compelled telephone and Internet companies to retain traffic and location data as well as related data necessary to identify the subscriber or user for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism.

The European Court of Justice had to issue a preliminary ruling concerning the validity of Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006. The request addressed to the European Court has its origin in a case triggered in Ireland by Digital Rights Ireland. The Court joined this case with another request made by the Austrian Constitutional Court concerning the compatibility with the Federal Constitutional Law of the law transposing Directive 2006/24 into Austrian national law.

The Court has found that data retention entails a wide ranging and particularly serious interference with the fundamental right to privacy... "The Court observes first of all that the data to be retained makes it possible, in particular :

• to know the identity of the person with whom a subscriber or registered user has communicated and by what means,
• to identify the time of the communication as well as the place from which that communication took place and
• to know the frequency of the communications of the subscriber or registered user with certain persons during a given period."

"Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented."

"The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data."

La directive sur la conservation des données prévoit que les compagnies téléphoniques et les fournisseurs d'accès à Internet doivent conserver les données relatives au trafic, les données de localisation ainsi que les données connexes nécessaires pour identifier l'abonné ou l'utilisateur, tout cela à des fins de prévention, de recherche, de détection et de poursuite des infractions graves, comme notamment les infractions liées à la criminalité organisée et au terrorisme.

La Cour européenne de justice a émis une décision préjudicielle portant sur la validité de la directive 2006/24/CE du Parlement européen et du Conseil, du 15 mars 2006. La demande présentée à la Cour européenne trouve son origine dans une affaire déclenchée par Digital Rights Ireland. La Cour a joint cette affaire à une autre question préjudicielle introduite par la Cour constitutionnelle autrichienne concernant la compatibilité de la loi transposant la directive 2006/24 dans le droit interne autrichien avec la loi constitutionnelle fédérale.

La Cour a décidé que la conservation des données constitue une ingérence d'une vaste ampleur et d'une gravité particulière dans les droits fondamentaux au respect de la vie privée. "La Cour constate tout d'abord que les données à conserver permettent notamment de savoir:

• avec quelle personne et par quel moyen un abonné ou un utilisateur inscrit a communiqué
• de déterminer le temps de la communication ainsi que l'endroit à partir duquel celle-ci a eu lieu et
• de connaître la fréquence des communications de l'abonné ou de l'utilisateur inscrit avec certaines personnes pendant une période donnée."

"Ces données, prises dans leur ensemble, sont susceptibles de fournir des indications très précises sur la vie privée des personnes dont les données sont conservées, comme les habitudes de la vie quotidienne, les lieux de séjour permanents ou temporaires, les déplacements journaliers ou autres, les activités exercées, les relations sociales et les milieux sociaux fréquentés."

"La Cour estime qu'en imposant la conservation de ces données et en en permettant l'accès aux autorités nationales compétentes, la directive s'immisce de manière particulièrement grave dans les droits fondamentaux au respect de la vie privée et à la protection des données à caractère personnel."

The United States is implicated in a case currently pending before the European Court of Human Rights concerning two Guantánamo detainees who claim to have been tortured in Poland after an extraordinary rendition by the Central Intelligence Agency (the "CIA")

The applicants are Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national of Yemeni descent who was born in 1965; and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian, who was born in 1971 in Saudi Arabia. Both men are currently detained in the Internment Facility at the U.S. Guantanamo Bay Naval Base in Cuba...

"Both applicants allege that they were victims of 'extraordinary renditions' by the CIA, that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same 'rendition plane'."

Both detainees' submissions are based in the so-called "Marty Reports", prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe into allegations of secret detention facilities being run by the CIA in several Member States; they are also based on a report prepared by the CIA inspector general in 2004 on 'counterterrorism detention and interrogation activities' between September 2001 and October 2003. Their submissions also refer to a 2007 report by the International Committee for the Red Cross on the treatment of 'high value detainees' in CIA custody...

"The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. Among other things, the reports identify the secret detention centre in Poland as being located in the Stare Kiejkuty intelligence training base near the town of Szczytno in Northern Poland."

Mr Al Nashiri’s and Mr Husayn's complaints before the European Court of Human Rights relate to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and, Poland’s failure to conduct an effective investigation into the events."

"More recently, evidence has emerged that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there to interrogate al-Qaeda suspects..."

Also, the Senate Intelligence Committee has produced a 6,300-page study, not available to the public yet, on the CIA Detention and Interrogation Program. Its Chairman, Dianne Feinstein, spoke on the Senate floor on 11 March 2014 in order to clarify the information that was published by the press concerning the CIA's intrusion and search of the Senate Select Committee's computers as well as the committee's acquisition of a certain internal CIA document known as the Panetta Review.

The debate surrounding the CIA's interrogation program is being revisited...

A new report from the Congressional Research Service entitled "NSA Surveillance Leaks: Background and Issues for Congress", summarizes for Congress what is publicly known about the two National Security Agency surveillance programs that were disclosed by Edward Snowden and reported in June 2013 by The Guardian and The Washington Post.

According to this report: "Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and what authorities the National Security Agency (NSA) is acting under. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities."

"These programs arise from provisions of the Foreign Intelligence Surveillance Act (FISA). However, they rely on separate authorities, collect different types of information, and raise different policy questions. For both programs, there is a tension between the speed and convenience with which the government can access data of possible intelligence value and the mechanisms intended to safeguard civil liberties. The first program collects and stores in bulk domestic phone records that some argue could be gathered to equal effect through more focused records requests. The second program targets the electronic communications of non-U.S. citizens but may incidentally collect information about Americans..."

Steven Aftergood, in charge of the Project on Government Secrecy of the Federation of American Scientists, states that "this report does not present any new factual material concerning the surveillance programs. But it identifies some outstanding questions about them — the word 'unclear' is used several times — and it formulates topics for congressional consideration".

Radio Nizkor has excerpted from this report the sections pertaining to: a) What Information Is Being Collected?, b) What Are the Legal Bases for the Collection? and, c) What Oversight Mechanisms Are in Place?, as these sections contain information on how the NSA operates these programs.

"'God we trust,' goes an old National Security Agency joke. 'All others we monitor'. [...]

While the Obama administration and Senate intelligence committee members defend the spying as crucial in its fight against terrorism, this is only the latest chapter in nearly a century of pressure on telecommunications companies to secretly cooperate with NSA and its predecessors. But as stunning technology advances allow more and more personal information to pass across those links, the dangers of the United States turning into a secret surveillance state increase exponentially.

The NSA was so flooded with billions of dollars from post-Sept. 11, 2001 budget increases that it went on a building spree and also expanded its eavesdropping capabilities enormously. Secret rooms were built in giant telecom facilities, such as AT&T's 10-story "switch" in San Francisco. There, mirror copies of incoming data and telephone cables are routed into rooms filled with special hardware and software to filter out email and phone calls for transmission to NSA for analysis. [...]

Today the NSA is the world's largest spy organization, encompassing tens of thousands of employees and occupying a city-size headquarters complex on Fort Meade in Maryland. But in 1920, its earliest predecessor, known as the Black Chamber, fit into a slim townhouse on Manhattan's East 37th Street.

World War One had recently ended, along with official censorship, and the Radio Communication Act of 1912 was again in effect. This legislation guaranteed the secrecy of electronic communications... To the Black Chamber, however, the bill represented a large obstacle to be overcome--illegally, if necessary.

So the Black Chamber chief, Herbert O. Yardley, and his boss in Washington, General Marlborough Churchill, head of the Military Intelligence Division, paid a visit to 195 Broadway in downtown Manhattan, headquarters of Western Union. This was the nation's largest telegram company - the email of that day... The two government officials took the elevator to the 24th floor for a secret meeting with Western Union's president, Newcomb Carlton. Their object was to convince him to grant them secret access to the private communications zapping through his company's wires.

It was easier achieved than Yardley had ever imagined... Yardley later described, "President Carlton seemed anxious to do everything he could for us.'"

Time and again over the decades, this pattern has been repeated. The NSA, or a predecessor, secretly entered into agreements with the country's major telecommunications companies and illegally gained access to Americans' private communications. [...]

Thus, for roughly 100 years, whenever the government knocked on the telecommunications industry's door and asked them to break the law and turn over millions upon millions of private communications, the telecoms complied.... But unlike with Yardley and the Black Chamber, the dangers today of secret cooperation between the telecom and Internet industry and the NSA are incomparable... We now live in an era when access to someone's email account and web searches can paint a more detailed picture of their life then most personal diaries. Secret agreements between intelligence agencies and communications companies should not be allowed in a democracy. There is too much at risk...

"La Comisión Interamericana de Derechos Humanos (CIDH), el Grupo de Trabajo de ONU sobre la Detención Arbitraria, el Relator Especial de ONU para la promoción y protección de los derechos humanos y las libertades fundamentales en la lucha contra el terrorismo, Ben Emmerson, el Relator Especial de ONU sobre la tortura y otros tratos o penas crueles, inhumanos o degradantes, Juan Méndez, y el Relator Especial de la ONU sobre el derecho de toda persona al disfrute del más alto nivel posible de salud física y mental, Anand Grover, formulan un llamamiento urgente al Gobierno de los Estados Unidos de América a respetar y garantizar la vida, salud e integridad personal de los detenidos en la Base Naval de Guantánamo, particularmente en el contexto de la actual huelga de hambre...

La CIDH, el Grupo de Trabajo y los Relatores Especiales de ONU observan con suma preocupación, ..., que la indefensión jurídica de los detenidos en Guantánamo y la consecuente angustia generada por la incertidumbre acerca de su futuro, les ha conducido a la medida extrema de la huelga de hambre para demandar un cambio real de su situación. La CIDH, el Grupo de Trabajo y los Relatores Especiales de ONU subrayan que cuando la detención indefinida de personas, la absoluta mayoría de ellas sin cargos en su contra, aun en circunstancias extraordinarias, se prolonga más allá de un mínimo de tiempo razonable, la misma constituye una flagrante violación al derecho internacional de los derechos humanos, y constituye, en sí misma, una forma de trato cruel, inhumano y degradante...

Asimismo, la CIDH, y los órganos mencionados de las Naciones Unidas, recuerdan que, de acuerdo con la Declaración de Malta de la Asociación Médica Mundial, en los casos de personas en huelga de hambre deben respetarse, entre otros, los principios de ética en la actuación del personal médico y de respeto por la autonomía de las personas, según los cuales es injustificable la alimentación forzada de seres humanos que, de manera voluntaria e informada, rechacen tal procedimiento...

En atención a estas consideraciones, la CIDH, el Grupo de Trabajo y los Relatores Especiales de ONU, instan a los Estados Unidos de América a:

• (a) adoptar todas las medidas legislativas, administrativas, judiciales y de cualquier otra naturaleza, necesarias para disponer el juzgamiento en pleno respeto del derecho al debido proceso de las personas detenidas en la Base Naval de Guantánamo o en su caso disponer su liberación inmediata o su traslado a un tercer país de conformidad con el derecho internacional;
• (b) agilizar el proceso de liberación y traslado de aquellos detenidos que han sido certificados por el propio Gobierno para ser liberados;
• (c) conducir una investigación seria, independiente e imparcial de los actos de alimentación forzada de internos en huelga de hambre y de la alegada violencia empleada en estos procedimientos;
• (d) permitir que la CIDH y los procedimientos especiales del Consejo de Derechos Humanos de las Naciones Unidas, ..., realicen visitas de monitoreo al centro de detención de Guantánamo en condiciones tales que se les permita recorrer libremente las instalaciones y entrevistarse libre y privadamente con los prisioneros; y
• (e) adoptar pasos concretos y decididos dirigidos a clausurar definitivamente el centro de detención de la Base Naval de Guantánamo;...

Négocié plutôt que débattu démocratiquement, ACTA contourne les parlements et est une véritable feuille de route pour des projets comme SOPA et PIPA, imposerait de nouvelles sanctions pénales et des mesures poussant les acteurs de l'Internet à « coopérer » avec les industries du divertissement pour surveiller et censurer les communications en ligne, en contournant l'autorité judiciaire.

Cet accord est donc une menace majeure pour la liberté d'expression en ligne et est porteur d'insécurité juridique pour les acteurs de l'Internet.

Le Parlement européen a désormais une occasion ultime de rejeter l'ACTA... Après avoir annoncé qu'il recommanderait le rejet de l'ACTA, le rapporteur britanique David Martin (S&D) tient ses engagements : son projet de rapport appelle le Parlement à refuser de « donner son consentement » à ACTA et souligne que « les bénéfices attendus de cet accord international sont largement inférieurs aux menaces qu'il fait peser sur les libertés civiles ».

Tout en soulignant les principaux dangers de l'ACTA, David Martin réconforte cependant les lobbies du copyright, des brevets et du droits des marques...

La conclusion du projet de rapport de M. Martin appelle la Commission européenne de « faire de nouvelles propositions pour protéger la propriété intellectuelle ».

Cela est aussi une source d'inquiétude au regard des projets de la Commission, qui s'apprête à réviser la Directive anti-partage IPRED (Acronyme pour: Intellectual Property Rights Enforcement Directive) pour accentuer la répression des infractions en ligne au droit d'auteur...

Le vote sur ACTA en plénière au Parlement européen devrait avoir lieu au mois de juillet voire en septembre...

En attendant, « le Parlement doit absolument résister aux pressions exercées par la Commission et protéger ses prérogatives »...

Plus dérangeant encore, sans même attendre la décision du Parlement européen d'accepter ou non ACTA, le Commissaire Michel Barnier, en charge du Marché intérieur, fait déjà pression en faveur de nouvelles mesures répressives en matière de droit d'auteur, similaires à celles prévues par les lois SOPA et PIPA aux États-Unis.

Last February 16th, the Court of Justice of the European Union ruled that a social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”.

SABAM brought the social network Netlog to court to impose an injunction requiring the installation of filtering systems aimed at the prevention of infringements committed by its Belgian members (around 2 million consumers) on its website.

A social network is a set of online communication tools that allow the creation and exchange of user-generated content. Netlog is an online platform, where members can create their own webpage with a blog, pictures, playlists, videos… and as such considered as a social network, and a hosting provider...

The SABAM v. Netlog judgment represents a new win for fundamental freedoms.

Particularly now, in a political climate where the foundations of the current Internet are at stake, the European judges have re-emphasised the importance of not overburdening communication tools with restrictive technologies. This is crucial to protect the fundamental rights value of the Internet as well as its economic significance.

For the second time in a just a few months, thanks to actions taken by SABAM have led the Court of Justice of the EU to underline the importance of an open and free Internet and the respect for fundamental freedoms, such as the freedom of communication privacy and the freedom to conduct business.

But what is the difference between the Scarlet case and the Netlog decision?. The wording of the questions was the same in both cases except that the Netlog decision specifically addresses the situation of hosting providers, while the Scarlet case involved Internet access providers...

In the Scarlet case, the issue was about an access provider, a "mere conduit" (a service consisting of "transmission" in a communication network) in the language of the E-Commerce Directive.

SABAM wanted the ISP Scarlet to install a generalised filtering system for all incoming and outgoing electronic communications passing through its services and to block potentially unlawful communications.

The draft proposal was scheduled to be officially released in late January after it was leaked in December 2011.

According to various sources, the proposal received negative responses from several Directorates-General over the course of the 'inter-service consultation,' some of whom have voiced their concern that the proposed new framework would be stricter than the current legal framework and thus may have a negative impact on businesses.

For example, parts of the proposal, such as the right to be forgotten, are viewed by some as potentially too burdensome for companies.

The delay in the release date for the proposal will push back the formal adoption of the draft proposal by the European Commission.

Viviane Reding, Justice Commissioner and Commission Vice-President, is said to be working on a communication in which she will outline several key goals and objectives for the draft proposal. The draft proposal has not yet entered into the legislative process and may undergo substantial changes before it reaches that stage."

European Digital Rights informs that "right at the end of the inter-service consultation process in the European Commission (the almost final step before a legislative proposal is launched), the United States Department of Commerce launched a significant lobbying campaign against the leaked draft proposal for a Data Protection Regulation. The campaign included high-level phone calls from senior figures in the US Department of Commerce to top level staff in the European Commission covering topics such as US business, multilateral and bilateral treaty organizations, PNR, national security, law enforcement, trade and innovation."

"In general, the US complained about the draft proposal arguing that it will break with international standards and might even end up being counterproductive for data protection..."

European Digital Rights has analized the most prominent exaggerations and misunderstandings in the US paper, namely those pertaining to interoperability, data breach requirements, right to be forgotten, definition of "child", adequacy, regulatory enforcement and international cooperation.

Although the agreement cannot take effect without the approval of the European Parliament and the Council, the Members of the European Parliament (MEPs) could read the proposed agreement only in a sealed room where they could not take notes or make copies.

The complete text on which the European Parliament will vote has finally been made public, revealing a failure to address the concerns raised by the Parliament and continued shortfalls in data protection, due process, and protection of fundamental rights.

In its resolution of 5 May 2010, the Parliament said that the Passenger Name Record (PNR) agreement should take the form of a treaty, recognize the fundamental right to freedom of movement, prohibit the use of PNR data for data mining or profiling, and take into consideration "PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU."

The proposed agreement does not meet these criteria, and does not mention any of these issues...

In view of the upcoming vote on the EU-USA PNR Agreement, the Austrian Organization for the Use of the Internet and NoPNR.org, with the endorsement, among others, of The Identity Project, Friends of Privacy USA, Center for Financial Privacy and Human Rights, Statewatch and Privacy International, sent an Open Letter to the European Parliament asking its Members to consider the following issues for their decision on the EU-US PNR Agreement:

• The proposed agreement will not result in improved legal security for citizens
• There is no access control or access logging
• The proposed agreement does not meet the conditions set by the European Parliament
• There is no appropriate information to travelers

The National Defense Authorization Act (NDAA) authorises the arbitrary and indefinite military detention of American citizens.

According to Obama's "signing statement", the threat of Al Qaeda to the Security of the Homeland constitutes a justification for repealing fundamental rights and freedoms. The relevant provisions pertaining to civil rights were carefully esconded in a short section of a document of more than 500 pages.

President Obama says he disagrees with the NDAA but he signs it into law: '[I have] serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists' , the President wrote. He acknowledges that certain provisions of the Act (contained in Subtitle D--Counterterrorism) are unacceptable.

The fact of the matter is that both the Executive and the US Congress are complicit in the drafting of Subtitle D. In this regard, Senator Carl Levin (D-Mich.) revealed that it was the White House which had asked the Senate Armed Services Committee 'to remove language from the bill that would have prohibited U.S. citizens' military detention without due process'.

President Obama justifies the signing of the NDAA for 2012 as a means to combating terrorism, as part of a 'counter-terrorism' agenda. But in substance, any American opposed to the policies of the US government can --under the provisions of the this Act-- be labelled a 'suspected terrorist' and arrested under military detention... The signing statement does not in any way invalidate or modify the actual signing by President Obama of the NDAA into law. It does not have any bearing on the implementation/enforcement of the Law...'

The 'most important traditions and values' in derogation of The Bill of Rights and the US Constitution have indeed been repealed, effective on New Year's Day, January 1st 2012..."

On the other hand, Forbes contributor E. D. Kain explains that "The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The 'compromise' was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that's because proponents of broad detention powers are confident that the status quo already permits such detention."

"In part the National Defense Authorization Act helps to preserve the status quo established a decade ago with the original provisions in the PATRIOT Act giving the government broad new powers in the so-called War on Terror.

In part the bill expands those powers, codifying the use of indefinite detention of foreign nationals and possibly US citizens arrested abroad and at home. In part the bill expands the use of the US military on domestic soil, at once complicating anti-terrorism strategies at home and raising serious questions about the role of the military in law enforcement.

The introduction of draft bills, such as the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) aims at providing a legal basis for domain names and IP address seizures.

SOPA's broad definitions could indeed mean that no online resource in the global Internet would be outside US jurisdiction.

In response to these legislative proposals and repeated unilateral measures against European websites, the European Parliament adopted a resolution on 17 November 2011 in preparation of the EU/US summit stressing 'the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.' The joint EU/US summit declaration published on 28 November 2011 indeed says: "We share a commitment to a single, global Internet, and will resist unilateral efforts to weaken the security, reliability, or independence of its operations".

However, despite the big show of opposition to the US bills and the Parliament's actions, Internet filtering and blocking schemes like SOPA and PIPA are still on the agenda on the other side of the Atlantic claiming worldwide jurisdiction for domain names and IP addresses.

According to recent reports, attempts to terminate the Internet's end-to-end architecture also seem to get even closer to the core of the Internet. This sort of access restriction is an experiment with key functions of the Internet, increasing the risk of fragmentation of the global Internet and as one co-chair of the DNS Working group of the European Regional Internet Registry stated, this gives restrictive tools 'to the bad guys'..."

On November 15th, 2011, a collection of international civil society and human rights organizations sent a letter to the House Judiciary Committee Chairman Representative, Lamar Smith (R-Texas), and Ranking Member Rep. John Conyers, Jr. (D-Michigan).

The groups called into question several provisions of the Stop Online Piracy Act (SOPA) that would have 'serious implications for international civil and human rights' and the integrity of the global internet. "By imposing technical changes to the open internet while eroding due process, SOPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for businesses and users internationally.

Business cannot be conducted online when international users and businesses do not have faith that their access to payments, domain names, and advertising will be available, raising challenges to economic development and innovation. This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.

The provisions in SOPA on DNS filtering in particular will have severe consequences worldwide...

By instituting this practice in the United States, SOPA sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet. Additionally, Internet engineers have argued in response to the Protect IP Act, DNS filtering would break the internet into separate regional networks.

Worse still, the circumvention technology that can be used to access information under repressive Internet regimes would be outlawed under SOPA, the very same technology whose development is funded by the State Department..."

The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.

The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland...

The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site...

El-Masri’s petition alleges that Macedonia violated Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.

Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

Regarding Al Nashiri, his petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty)...

If the Court accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the Court. Should the Court find that a member state has violated the Convention, it may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.

Security Council resolutions 1988 and 1989 create two separate sanctions regimes, one for Al-Qaida and another for the Taliban. Up until this point, there has only been one sanctions regime to deal with both groups, established under Security Council Resolution 1267 in 1999...

This change lays the groundwork for de-listing members of the Taliban to participate in the so-called reconciliation efforts in Afghanistan.

The UN special Rapporteur on human rights and counter-terrorism at that time, Martin Scheinin, said the changes to the sanctions regime do not resolve fundamental deficiencies throughout the listing and de-listing process and exacerbates other human rights concerns.

In his statement the Rapporteur says that "The terrorist blacklist has been subject to consistent and growing criticism, including by certain judicial bodies and the Human Rights Committee, for its human rights shortcomings. Issues of fair trial and due process, right to privacy, freedom of movement and right to property have been raised and litigated".

Despite the reforms, the Special Rapporteur has maintained the position that the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial.

Obama's failure to consult with Congress creates a dangerous precedent that denies Congress a say in deciding when and how U.S. military forces should be used and instead places these decisions into the hands of just one person - the president. [...]

The U.S. Constitution grants Congress the power to declare wars and fund the military. However, the Constitution simultaneously empowers the president to carry out wars as commander-in-chief. Both branches of government have long debated this dichotomy of war powers.

The War Powers Resolution of 1973 meant to end this debate by requiring closer collaboration between the branches when the United States enters into a conflict. [...]

Passed over a presidential veto, the War Powers Resolution means to serve as a check on the president's ability to commit U.S. forces to lengthy military engagements without approval from Congress.

Since the start of U.S. involvement in NATO's Libya mission, President Obama has neglected the War Powers Resolution by denying that the conflict is actually a war. [...]

Considering that America provided the bulk of NATO's military capabilities and funding in Libya, this was as much America's war as it was NATO's.

Therefore, Obama should have consulted with and sought approval from Congress and adhered to the 60-day deadline, as the Resolution requires.

Britain's largest police force is operating covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area.

The surveillance system has been procured by the Metropolitan police from Leeds-based company Datong plc, which counts the US Secret Service, the Ministry of Defence and regimes in the Middle East among its customers.

Strictly classified under government protocol as "Listed X", it can emit a signal over an area of up to an estimated 10 sq km, forcing hundreds of mobile phones per minute to release their unique identity codes, which can be used to track a person's movements in real time.

The disclosure has caused concern among lawyers and privacy groups that large numbers of innocent people could be unwittingly implicated in covert intelligence gathering...

Nick Pickles, director of privacy and civil liberties campaign group Big Brother Watch, warned the technology could give police the ability to conduct "blanket and indiscriminate" monitoring... He added that "Such invasive surveillance must be tightly regulated, authorised at the highest level and only used in the most serious of investigations. It should be absolutely clear that only data directly relating to targets of investigations is monitored or stored." [...]

Regarding the investigatory powers act, lawyers have condemned what appears to be deception of the courts by undercover police and have called for fundamental reforms of the legislation governing covert operations.

"The revelation that a constable who infiltrated protest groups gave false evidence in court under oath triggered demands for a review of the Regulation of Investigatory Powers Act (Ripa)...

Gordon Nardell QC, who is leading the Bar Council's working party on the operation of Ripa, said that “At the moment the law allows the police to target legally privileged communications between lawyer and client”. "The Bar Council thinks that is fundamentally wrong and creates a risk of miscarriages of justice. People accused of crime must be able to speak freely with their lawyer in the knowledge that what they say is kept from the ears of the investigating authorities.”

The Directive applies to traffic and location data and the "related data necessary to identify" a user. Each EU member state must retain this data for a period of six months to two years from the date of the user's communication.

The Directive also requires each EU member state to enact procedures that grant law enforcement access to the data. According to Hustinx, the Directive does not provide clear guidance about why this data must be retained or who will have access to it.

Similarly, Hustinx believes that the Directive does not sufficiently justify the necessity of the data retention, lacks foreseeability, and is overly intrusive. He also notes that statistics on access requests indicate that a retention period of up to two years 'goes far beyond' what is necessary. In light of these concerns, Hustinx has asked the European Commission to consider all other options, 'including the possibility of repealing the Directive.' [...]

On 26 September 2011, European Digital Rights and 37 other NGOs from 14 countries sent a letter to Commissioners Malmström, Kroes and Reding on the review of the Data Retention Directive.

In their communique informing of the sending of the letter, European Digital Rights states “The central mistake which we would like not to see repeated is the fallacy that all uses of retained data can be used to argue that the Directive is valuable. In reality, recently generated data is more likely to be used in investigations and such data would have been available anyway even if the Directive had never existed.”

The letter also draws attention to some of the core problems with the Directive, such as the lack of a harmonised definition of "serious crime" (and the far reaching consequences of this) and the lack of a harmonised approach to access and security.

EDRi recalls that "Article 52 of the Charter of Fundamental Rights of the European Union states that limitations of fundamental rights must not restrict or reduce the right in such a way or to such extent that the very essence of the right is impaired. The European Court of Human Rights has ruled similarly on numerous occasions."

Ironically, the Directive was proposed as a measure to harmonise the approach to this policy in the European Union - even though few countries had such a policy to begin with. It managed to disharmonise the single market, by forcing the policy onto 27 countries, with vastly varying retention periods, rules for cost reimbursement, etc.

Ostensibly, these 'smart sanctions' (which target groups and individuals rather than whole populations) are designed to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support.

In practice, however, far too many people have been included in national and international terrorism lists. At the same time, they have been systematically denied the possibility of mounting a meaningful defence to the allegations against them. Moreover, many listings are clearly politically or ideologically motivated, undermining genuine counter-terrorism efforts and paralysing conflict resolution efforts.

The UN blacklisting regime stems from UN Security Council Resolution 1267, which created the first list of alleged terrorists "associated with Osama bin Laden, the Taliban and Al-Qaeda". [...]

The EU's terrorist lists stem from the measures it took to transpose Resolution 1373 into EU law and currently stands at 57 individuals and 47 organisations. In addition to the UN and EU lists, many states have adopted domestic blacklists, massively expanding the net of criminalisation.

Whereas the EU has adopted a particularly broad definition of ‘terrorism’, the UN has failed to reach such an understanding, despite decades of deliberation. UN Security Council Resolution 1373 thus effectively outsources the definition of terrorism to nation states, encouraging the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests.

The criminalisation of self-determination movements that has resulted has transformed the migrant and Diaspora communities that support them into ‘suspect communities’ and obstructed peace processes aimed at resolving such conflicts.

There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly within Europe.

Net neutrality refers to the issue of whether Internet service providers (ISPs) should be allowed to monitor network traffic to filter or restrict Internet access, for example to block specific services or applications (for example peer to peer) or give preference access to others.

On October 7th, 2011 the EDPS, Peter Hustinx, released an opinion on the European Commission Communication on the open internet and net neutrality in Europe, a communication that had been adopted by the Commission on April 19th, 2011. (The Supervisor is an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies).

According to "La Quadrature du Net", an European advocacy group that promotes the rights and freedoms of citizens on the Internet, the EDPS's opinion on Net neutrality is a ground-breaking opinion. "He stresses that restrictions to Internet access inevitably harm privacy".

As the European Parliament enters in the final stage of the negotiations on its resolution on Net neutrality, this opinion underlines that the EU Commission's "wait and see" approach is bound to fail and is unjustifiable. Members of the EU Parliament - who will soon hold a crucial vote on the matter - must preserve citizens' privacy by requiring strong regulatory measures to ban discrimination of online communications.

In fact, the "Industry Committee" of the European Parliament unanimously adopted a resolution last October 20th demanding that the European Commission promptly assess the need for further legislative action...

La Quadrature du Net considers that the resolution passed by the Industry Committee is overall a positive text. However, the resolution falls short of asking for immediate legislative action to protect Net neutrality and for sanctions against Internet Service Providers who restrict access to the Internet. It also includes a loophole, which risks being interpreted as accepting such restrictions on mobile Internet on the pretext of alleged network congestion.

Jérémie Zimmermann, spokesperson for La Quadrature du Net, said that “While rather weak, the adopted resolution is a political commitment from the European Parliament in favour of Net neutrality, and aims to prevent telecom operators from restricting Internet access. Pressure is increasing on Commissioner Neelie Kroes and the EU telecoms regulators to come up with further legislation. Mrs Kroes must break away from her 'wait and see' approach and take action to effectively protect competition, innovation as well as citizens' freedom of expression and privacy online".

The draft guidelines on "Net Neutrality and Transparency" proposed by the Body of European Regulators for Electronic Communications (BEREC) in October 2011, have actually nothing to do with Net neutrality according to privacy groups, and instead readily accept that telecom operators can restrict access to the Internet as long as users are informed. They only prove that mere transparency and competition will not prevent operators from violating Net neutrality.

The Directive requires service provider to keep communications data concerning: phone-calls, faxes, mobile phone calls (including location) and internet usage (it should be noted that the monitoring of internet usage also reveals the content).

This highly controversial legislation was passed in 2006, its path cleared by the terrorist attacks in London and Madrid. Both these occasions provided the Council with the opportunity to introduce EU-wide data retention measures

Perhaps the most well-known comment on the Data Retention Directive is that of the European Data Protection Supervisor, who referred to it as “the most privacy invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” This statement reinforced the arguments made by numerous civil society organisations, individuals and politicians.

It is because of the highly invasive nature of the surveillance and monitoring permitted by mandatory data retention that the directive was annulled or suspended by court decisions in several Member States...

However, the idea that data retention and greater surveillance of telecommunications will help in the “fight against terrorism” is persistent, and seems to be resonating across Europe. The situation in Norway and the failure of police and security services to prevent the attacks has given rise to a number of arguments for enhanced surveillance of the internet.

At the EU level, there remains a significant lobby opposing any comprehensive re-thinking of how data retention should work, or whether it is necessary at all.

A number of Member States are strongly in favour of retaining the Directive as it stands – a recent leaked paper drafted by France, Ireland and the UK states that data retention "has played a key role in maintaining public security throughout Europe."

The paper attempts to justify current data retention legislation on numerous grounds, not least through recounting tales of specific cases where retained data has been successfully utilised.

Yet it may have been entirely possible to solve these cases without mandatory, blanket retention of all telecommunications information by targeting suspects. Alternative options include a process known as “quick-freeze”, whereby law enforcement bodies are able to ensure the retention of specific telecommunications data after an investigation has begun.

The differences between Member States were reflected at a recent meeting of the Working Party on Data Protection and Information Exchange...

Both plaintiffs worked as contractors in Iraq and were wrongfully detained and subjected to "enhanced interrogation techniques" by American military officers.

"The Court agreed with several rulings of a lower court regarding the case. Specifically, the Seventh Circuit found that Vance and Ertel 'alleged in sufficient detail facts supporting Secretary Rumsfeld's personal responsibility for the alleged torture,' 'that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings,' and that 'a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone.' (Bivens remedies allow for citizens to sue for damages for constitutional violations committed by federal agents.)"

On Apr. 16, 2006, two U.S. contractors in Iraq's Red Zone were handcuffed, blindfolded and transported to Camp Cropper, a U.S. military facility located a few miles from Baghdad International Airport, where they were detained as security internees.

Held without a trial or court hearing and tortured, the plaintiffs are suing for damages rendered against them in Camp Cropper, where Rumsfeld and several other unnamed officials allegedly "developed, authorized and used harsh interrogation techniques on them", thus violating their basic civil, constitutional and human rights...

Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, Vance is one of only two that has been allowed to proceed... On August 2, 2011, the United States District Court for the District of Columbia, in Washington DC, upheld the validity of a constitutional rights claim by Doe against Rumsfeld for his role in the torturing and illegal imprisonment of Doe, a U.S. citizen who was working as a translator in Iraq.

The Vance-Ertel case exposes the myriad links between private contractors, U.S. forces, U.S. government officials and intelligence agencies that often converge in the dark cells of detention centres such as Abu Ghraib, Guantanamo Bay and Camp Cropper...

Upon analysing whether plaintiffs' allegations of torture entail a violation of their constitutional right to substantive due process, the court said that "The Supreme Court 'has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause.'"

The court rejected the claim that government officials should be above the law, stating in its final decision, "We see no persuasive justification in ... case law or otherwise for Rumsfeld's most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone."

"Given the totality of the plaintiffs' allegations, that they were interrogated with physical violence and threats, were kept in extremely cold cells without adequate clothing, were continuously deprived of sleep..., a reasonable official in Secretary Rumsfeld's position in 2006 would have known that this amounted to unconstitutional treatment of a civilian U.S. citizen detainee."

The Commission, which has been in charge of negotiating the agreement with the USA, has circulated the final agreement prior to formally submitting it to the Council of the European Union and the European Parliament for their agreement. This draft was distributed among Delegations on May 20th, 2011.

Said agreement has not been amended to meet the concerns of the Legal Service. Formally, the European Parliament cannot amend the agreement but it has to agree it - in effect, the parliament can veto the planned Agreement.

The European Commission's Legal Service Note says that the Legal Service has reviewed the draft agreement in respect of fundamental rights and: "considers that there are grave doubts as to its compatibility with the fundamental right to data protection." It concludes in fact that the Legal Service "does not consider the agreement in its present form as compatible with fundamental rights." [...]

On this matter, Tony Bunyan, Statewatch Director, comments:

"Secret Minutes of EU-US meetings since 2001 show that they have always been a one-way channel with the US setting the agenda by making demands on the EU. When the EU does make rare requests like on data protection, because US law only offers protection and redress to US citizens, they are bluntly told that the the US is not going to change its data protection system - as they were at the EU-US Justine and Home Affairs Ministerial Meeting in Washington on 8-9 December 2010.

This Agreement does not meet EU data protection standards of proportionality or purpose limitation, nor does it provide judicial redress to data subjects or any guarantee of independent oversight.

Controlling your information, having access to your data, being able to modify or delete it – these are essential rights that have to be guaranteed in today's world.

The European Commission announced on November 4th, 2010, a strategy to "protect individuals' data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.

The key goals include, as the Electronic Privacy Information Center informs, "strengthening the rights of individuals, enhancing the free flow of information, extending privacy safeguards to police and criminal justice records systems, ensuring high levels of protection for data transferred outside of the European Union, and more effective enforcement of privacy rules. The new policy will build on the 1995 EU Data Directive which is the foundation for much of privacy law across Europe".

The current regulatory framework is basically provided by the Directive 95/46 of the European Parliament and the Council, of October 24th 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data". This general Data Protection Directive has been complemented by other legal instruments, such as the e-Privacy Directive for the communications sector..

In 2009, the Commission launched a review of the current legal framework on data protection, starting with a high-level conference in May 2009, followed by a public consultation running until the end of 2009. Targeted stakeholders consultations were organised throughout 2010.

This policy review will be used by the European Commission with the results of a public consultation to revise the EU’s 1995 Data Protection Directive. Public submissions and comments can be made on the European Commission’s public consultation website until January 15, 2011.

Building on this, the Commission will present proposals for a new general data protection legal framework in 2011, which will then need to be negotiated and adopted by the European Parliament and the Council...

ABOUT THE PROCEEDINGS: Jose M. Sison was listed first by the US on the 12th of August 2002. One day after he was put on a Dutch national list, for he is residing in Holland since 1988. In September 2002, after announcement that Sison will take this matter to a Dutch court, he was taken off the Dutch list and put on the EU list, so finally the case had to be brought before the European Court of Justice, where the decision process is much slower. The first decision took 5 years, the second one 2 more years. The ruling was in favor of Sison.

As for the reasons why Jose M. Sisan was on the list, the Dutch government provided no answer. The Council of the EU responded, first, that the information grounding his inclusion on the list was secret; when access to the file was then requested, the answer was that there was no file. Later on, it was admitted that there was a file, but the file was submitted to the Committee by a member state who took the documents back... and the information as to which state submitted the documents is also secret. According to the speaker:

1) In terms of due process of law this means that the EU, at least at this initial states, is acting as the Spanish inquisition, where the whole proceedings were conducted on a secret file and the arguments held against the “defendant” where kept away from him. It is the defendant who has to show that he/she is not a terrorist.

2) Consequences: The sanctions imposed upon the person are extremely harsh. Sison was not allowed to work in Holland, where he had a modest social allowance which was taken away from him. He could not have access to any insurance. Not being able to pay for rent of his apartment, he received a letter saying that he had to leave the apartment. It is all about a a sanction that was abolished by the French revolution, and that is call “civil death”, by which the individual is excluded as a person from all economic and social life.

The speaker asks himself whether all this has anything to do with the struggle against terrorism?. The answer is no. The amount of funds deposited in the bank account that was frozen was ridiculous. No suspicious transactions had ever been found by the Dutch authorities, as stated by the attorneys representing the state before the European Court of Justice. It is an instrument of political pressure rather than a rational and legitimate way of combating the financing of terrorism. In fact, Sison case shows that the question whether Sison had been involved on financing terrorism has not even been taken into consideration in any way.

WHO IS JOSE MARIA SISON: Jose Maria Sison was the founder of the Communist Party of the Philippines. He was arrested under the Marcos regime and held for 10 years in solitary confinement. Since 1969 an armed conflict exists in the Philippines and since the beginning of the '90 the government and the National Democratic Front of the Philippines (NDFP) decided to engage in a peace process, which led to the signing of important agreements, the first of which was a road map to the process itself and a "Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law", which included a Joint Monitoring Committee in charge of monitoring its implementation. Under this agreement both parties committed themselves to bring to justice human rights violators and war crimes perpetrators.

At the end of the 90's it became evident that the government of the Philippines could not deliver on land reform and democratic reforms, thus in violation of the initial agreement. At that time, before 9/11, the government put pressure on the NDFP to accept its proposals in the peace negotiations and threatened with criminalizing the movement and the negotiators as terrorists. Actually that was what happened.

RESULTS IN THE FIELD: These negotiations, based on respect for international law and mutual recognition, were broken as a result of the criminalization of political opponents and the rebellion. The government of the Philippines engaged since into a completely different approach. As a result: 800 people have been killed in the meanwhile. The EU legitimized through this listing this evolution in the Philippines and helped the government to depart from the negotiating process and to engage into brutal and savage repression against progressive movements, hence supporting a repressive government.

SISON has been delisted by the European court twice: in July 2007 on procedural grounds (lack of state of reasons and contradiction of evidence); then, 10 days before the court decided to annul the Council decisions by which Sison was put on the list between 2002 and 2006, the EU put him on the list again, hence leading to a second Sison case.

In this second series of listing the Council's state of reasons did not have to do with terrorism and was in contradiction with the own legal requirements the Council set up itself.

Fermon is rather skeptical about the purported advances concerning notification and the statement of reasons, given that when defense counsel got the proposed statement of reasons, counsel wrote a letter to the Council and all 27 member states warning of the blatant error...Two months later the EU was bringing forward the same statement of reasons.

In the last Sison case (Sep. 2009), the Court stated that a decision taken from an asylum case does not meet the requirements in order to put somebody on the list.

Jan Fermon sees an extremely worrying development in the announcement made by Gilles de Kerchove, the EU Counter-terrorism coordinator: The common position would be changed in such a way that in the future there will be no requirement for a decision by a competent judicial authority for investigation. Instead, the fact of the secret services having launched an investigation would be considered to be enough to put somebody on the list. According to De Kerchove speech, the legal requirement by which at least a judge or judicial authority should have looked into the case at the national level before the EU can list a person, would be eliminated.