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SECURITY CLOUDS

Towards an ethical governance of

surveillance in Europe

Monica den Boer and Jelle van Buuren

Within the European Union (EU), several instruments have been created at local, national and

international level to monitor the movements of persons, goods and systems. The political

justification of this vast expansion of surveillance instruments is based on the supposed need for

security actors to predict and prevent security voids. In this article, we argue that the emergence of

security clouds � the spray of data on individuals that floats between accumulated data-systems

and networked surveillance instruments � present a considerable challenge to the governance

of surveillance. The formally pronounced objects of combating crime and terror can be

conceptualized as emerging forms of governance through surveillance and therefore influence

societies deeper than merely in the field of security governance. Data which are fused in the

security clouds can be stored for different purposes by different actors, acquire new functionalities

and technical applications. The responsibility for surveillance technologies reaches beyond the

scope of traditional scrutiny mechanisms, including parliaments, judicial authorities and civilian

oversight bodies. The European, national, vertical and horizontal legal arrangements for

transparency, access and data protection lack coherence and consistency. This article advocates

a professional security ethic on top of a consolidated legal framework.

KEYWORDS: European Union; surveillance; security; intelligence; ethics

Introduction

Within the European Union (EU), several instruments have been created at local,

national and international level to facilitate the surveillance of the movements of persons,

goods and systems. Surveillance includes a range of measures, exercised by public and

private authorities, and is considered to enhance objective and subjective security. Hence,

in the EU, surveillance has become closely intertwined with security. Traditionally, national

and international law enforcement authorities and intelligence services rely heavily on

information, principally gathered and dispersed through large databases (Van Linde 2002).

However, as we will argue, the rise in surveillance is not just a modernized state-of-the art

practice of policing, customized for the needs of modern societies, but also entails new

forms of governance. Gill (2006, p. 28) writes � comparably but more extensively � that

global surveillance is argued to be an intrinsic part of the general economic restructuring of

capitalism, and that ‘security intelligence processes’ are ‘essentially a sub-set of the more

general surveillance that constitutes contemporary governance. Thus, since intelligence is

Journal of Cultural Economy, Vol. 5, No. 1, February 2012ISSN 1753-0350 print/1753-0369 online/12/010085-19

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one of the two defining components of surveillance, and, in turn governance, then security

intelligence is one of the defining components of security governance’.

On the basis of this argumentation, an approach which advocates legal rules

concerning the collection, dissemination and use of information gathered by surveillance

practices needs to be complemented by an ethical governance of data-exchange in the

security arena. We argue that a coherent legal framework is important but insufficient in the

face of four developments. First, the ever expanding range of European databases which

have been designed with the objective to enhance the security of the Member States and

their citizens. These databases have gradually expanded to include new functionalities and

new technological facilities. Second, the EU accommodates a multiplicity of European,

national, vertical and horizontal legal arrangements for transparency, access and data

protection, culminating in a patchwork of rules and instruments. Third, surveillance

technologies are used by many different security actors, at international, national and local

level, as well as at public and private level. Increasingly, the responsibility for surveillance

technologies reaches beyond the scope of traditional scrutiny mechanisms, including

parliaments, judicial authorities and civilian oversight bodies. Fourthly, the function of

surveillance exceeds the formally pronounced objects of combating crime and terror and

can be conceptualized as emerging forms of governance through surveillance and therefore

influences societies more deeply than just in the field of security governance. We will

introduce the concept of ‘security clouds’ to grab the essence of these interlocking

developments. By this we mean clouds of data about individual citizens. These data can be

stored for different purposes by different actors but are now retransformed under the magic

umbrella of ‘security’ and can be used for different reasons by different security actors. So

what is needed is a more fundamental reappraisal of the rising surveillance complex.

In this article, we begin by providing a brief overview of existing European databases

which are operated in the EU Area of Freedom, Security and Justice. A trend that can be

discerned is the transformation from ‘old fashioned’ silos of information to the inter-

connection and interoperability between these systems, as well as a move towards global

data transfers and quantum surveillance. The change from vertical and compartmentalized

information systems to horizontal and inter-sectoral information exchange generates

several questions about governance through surveillance as well as the governance of

surveillance. We will discuss the governance implications and conclude the article by

presenting some reflections on an ethical governance of surveillance in Europe.

European Dataveillance: From Database to Security Clouds

Security databases have been created at different moments, have been embedded

in different institutional contexts, and have served a range of objectives. These automated

information systems have been built on the basis of different technological architectures,

and have been subjected to diverging rules for access and use. The incremental fashion of

their introduction has prevented a comprehensive political and social debate about the

necessity, proportionality, functionality and effectiveness of these systems. The gradual

erosion of the walls between information systems renders the guarantees and conditions

on their use and application rather obsolete, which necessitates a fundamental debate.

Examples of European cross-border security databases that are used by law

enforcement authorities (including customs and border control authorities) are VIS (Visa

Information System), SIS I and II (Schengen Information System), CIS (Customs Information

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System), Eurodac (a fingerprint system for asylum-seekers) and EIS (Europol Information

System). SIS1 was of the first European databases, created for the purpose of immigration

and crime control. The system emanated from a desire of the Member States to create an

area without internal border controls while facilitating the movement of persons across

their external frontiers. Operational since 1995, it seeks to maintain public security,

including national security, within the Schengen area and facilitate the movement of

persons using information communicated via this system. SIS is a centralized information

system comprising a national part in each participating state (NSIS) and a technical

support function in France. Member States may issue alerts for persons wanted for arrest for

extradition; third country nationals to be refused entry; missing persons; witnesses or those

under judicial summons; persons and vehicles subject to exceptional monitoring on account

of the threat they pose to public or national security; lost or stolen vehicles, documents and

firearms; and suspect bank notes. Data entered in SIS include names and aliases, physical

characteristics, place and date of birth, nationality and whether an individual is armed and

violent. Police, border control, customs and judicial authorities in criminal proceedings may

access these data in accordance with their respective legal powers. Europol and Eurojust

also have access to SIS data relating to third-country nationals on the entry ban list and

alerts on lost and stolen documents, persons wanted for arrest for extradition and those on

persons subject to exceptional monitoring on account of the threat they pose to public or

national security. In addition to the original data categories covered by the first-generation

system, SIS II will be able to handle fingerprints, photographs, copies of the European arrest

warrant, provisions to protect the interests of people whose identity is being misused and

links between different alerts (see also Brouwer 2008). SIS is Europe’s largest running

information system. The total of valid records in SIS reached 35.69 million by 2010; about

one million of those records are on individuals.2

Eurodac3 is a centralized automated fingerprint identification system containing the

fingerprint data of asylum-seekers and people who have been apprehended in connection

with the unlawful crossing of the external borders of the EU. In operation since January

2003, its purpose is to assist in determining which Member State should be responsible,

under the Dublin Regulation, for examining a particular asylum application. By comparing

the fingerprints of asylum-seekers and irregular migrants with Eurodac records, national

authorities seek to establish where that person might have submitted an asylum

application or first entered the EU. Authorities may also compare against Eurodac records

the fingerprints of third-country nationals found illegally on their territory. According to

the latest figures (European Commission 2010), 1,554,558 sets of fingerprints have been

stored in Eurodac. Of a total of 236,936 new asylum applications recorded in Eurodac in

2009, 23.3% were ‘multiple asylum applications’. However, as the Commission (2010)

admits, these figures are partly flawed, as some Member States retake and retransmit the

fingerprints of applicants upon arrival after transfer under the Dublin Regulation, which

results in ‘a distortion of the statistics on multiple applications’.

The purpose of the Visa Information System (VIS)4 is to help implement a common

visa policy by facilitating the examination of visa applications and external border checks

while contributing to the prevention of threats to Member States’ internal security. VIS is a

centralized information system comprising a national part in each participating state and a

technical support function. It includes data on visa applications, photographs, fingerprints,

related decisions of visa authorities and links between related applications. It uses a

biometric matching system to ensure reliable fingerprint comparisons and verify the

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identity of visa-holders at external borders. Visa, asylum, immigration and border control

authorities have access to this database for the purpose of verifying the identity of visa-

holders and the authenticity of visas. National law enforcement agencies and Europol may

consult it for the purpose of preventing and combating terrorism and other forms of

serious crime. VIS is set to become the EU’s largest database, with currently 20 million visa

requests. In the near future, the EU will also launch a system by means of which it can

detect so-called over-stayers, or people whose legal residence has expired. This will be the

Entry/Exit System (ESS) (Besters and Brom 2010, p. 4).

The CIS Convention of 1995 deploys the Customs Information System (CIS)5 to assist

in preventing, investigating and prosecuting serious violations of national laws by

increasing, through the rapid dissemination of information, the effectiveness of coopera-

tion between Member States’ customs administrations. CIS, which became operational on

24 March 2003, is managed by the Commission and is a centralized information system

accessible via terminals in each Member State and at the Commission, Europol and

Eurojust. It comprises personal data with reference to commodities, means of transport,

businesses, persons and goods and cash retained, seized or confiscated. CIS also establishes

a Customs file identification database (FIDE) to assist in preventing, investigating and

prosecuting serious violations of national laws. FIDE enables national authorities

responsible for conducting customs investigations, when they open an investigation file,

to identify other authorities that may have investigated a given person or business

(Broeders 2007).6

Gradually, the functionalities of these data-systems have been or will be extended.

The main common characteristics in the relevant EU databases concern the increased use

of biometric identifiers, which allows them to be used for the purpose of criminal

investigation and intelligence-gathering, the growing number of authorized users who

have access to these systems, and the potential for searching large amounts of data with

the help of data-mining and data-profiling.

Meanwhile, the creation of new databases is underway, such as the (interlinking of)

national DNA-databases (resulting from the Prum Treaty which was signed in 2005) and

the creation of a European Border Surveillance System (Eurosur).7 These data-systems are

ordered according to the principle of verticality, i.e. data-input organized inside the

Member States and mediated by a central (law enforcement) authority. The reason for this

type of information architecture is the stronghold of national sovereignty: the prime locus

of control on law enforcement activity still resides with national authorities. A vertical,

central, hierarchical governance of data-gathering and exchange suggests that informa-

tion practices are correctly, intelligibly and transparently subjected to national and

international data protection systems.

Increasingly, however, there is an emphasis on data retention and data transfers,

which allows a horizontal information-exchange between agencies at different govern-

ance levels. One of those rather prominent instruments is the Passenger Name Records

(PNR) agreement.8 Since 2003, USA authorities have demanded on-line access to the PNR

which are kept by European flight carriers on flights to the USA. By screening the data, the

American and Canadian authorities9 seek to reduce the possibility that (would-be)

terrorists enter their territories from the EU. PNR comprise various data, such as name, date

of birth and telephone numbers, as well as credit card numbers, seat numbers and meals.

The USA authorities may also demand information from the Advanced Passenger

Information System, including gender, passport number and nationality of the passengers

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(Rathenau Instituut 2007). The screening method raises several questions however as to

how PNR helps to identify risks, what the substance of the precise procedure actually is,

and whether the data are run against existing criminal data (Kuipers 2008). Several bilateral

agreements have shaped the basis for the exchange of PNR data by airlines. These

comprise the 2004 EU�US PNR agreement, ruled in 2006 by the European Court of Justice

to be founded on the wrong legal basis (Balzacq 2008, p. 91); the 2005 EU�Canada

agreement on API (Advanced Passenger Information) and PNR data; the 2006 EU�US

interim PNR agreement (replaced by the 2007 definitive EU�US agreement on the

submission of PNR-data), and the PNR agreement between the EU and Australia from June

2008 (Kuipers 2008, p. 17). Foreign authorities can use these data of individuals travelling

from Europe for the purpose of data-matching, data-mining and profiling. In the

meantime, it has been ventured that these data have also been used to detect criminals

and to control land borders. Hence, vast numbers of data are put in stock by American,10

Canadian and Australian authorities which demonstrate the increasingly dense informa-

tion web and the way in which the EU has actively developed an external security link in its

counter-terrorism policy.

As the number of countries developing PNR systems will most likely increase in the

coming years, the European Commission is considering the development of a series of

general criteria for the negotiation of new PNR agreements with third countries. In the

long term, the EU is exploring the possibility of replacing bilateral agreements with a

multilateral agreement between all countries that use PNR data.11 Members of the

European Parliament, the European Data Protection Supervisor, privacy organizations,

airlines and data protection authorities are increasingly concerned about the transmission

of personal files without the approval of the relevant individual (Kuipers 2008, p. 3).

A major concern is that data are used for purposes other than counter-terrorism purposes,

and that the obligation to transfer data on passengers lacks reciprocity.12

The move to ‘horizontal data transfers’ is also visible in the monitoring and tracking

of financial data by means of the Terrorist Financial Tracking Programme (TFTP), the so-

called SWIFT-agreement (see also Wesseling, de Goede and Amoore, this issue). This

agreement allows US authorities access to European based financial data managed by

SWIFT13 in cases of anti-terrorism investigations. The draft agreement14 was rejected by

the European Parliament on 11 February 2010, the main reason being that the instrument

impacted negatively on the personal privacy of European citizens (Guild 2010, p. 2).

Despite certain improvements which were made in the interim agreement, the European

Data Protection Supervisor continued to express concerns about ‘bulk transfers’ of data.

He also recommended that data protection standards ought to be guaranteed, for

instance in view of the proportionality of the system itself, data retention periods,

enforceability of (European) data protection rights, judicial oversight and independent

supervision.15 In the meantime, the European Parliament agreed with an extension of the

agreement after Europol was given the formal mandate to screen and verify the transfer of

data.16 However, in Spring 2011,17 it was concluded by the Europol Joint Supervisory

Board that many data protection requirements were not being met by Europol, and that

USA requests for data were too general and too abstract.

Data-warehousing and the governance of data flows imply a historically unprece-

dented penetration of the state into society, which can be identified as a fundamental shift

in the bureaucratic power of the state and as a manifestation of political dominance of

the state vis-a-vis her citizens (Gilliom 2001, p. 129). Thus, in addition to the vertical

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governance of large EU-databases, international data-exchange practices gradually evolve

into ‘horizontal’ strategies, whereby de-central, i.e. local, law enforcement authorities can

directly and automatically exchange information and intelligence with their foreign

counterparts in other EU Member States. The change in the information regime of the EU

Area of Freedom, Security and Justice can also be identified in recent EU discourses, such

as the Stockholm Programme18 and the EU Internal Security Strategy,19 which announce a

development towards synergy and interoperability in the face of multiple threats:

databases become increasingly interconnected and are made accessible to a broad range

of criminal investigation, intelligence and surveillance objectives. Gradually, we may

witness the emergence of a ‘security cloud’, which drifts along in virtual space, fused in the

catch-all notion of ‘security’. Personal and sensitive data, once collected and stored by

private and public actors for different purposes � be it for medical reasons, social security,

credit rating agencies, criminal investigations, intelligence operations, libraries, travel

agencies, on-line web-shops, air line companies, social media or telecom and internet

providers � are permanently exchanged, combined, upgraded, refined, analysed, resold

and stored in a range of national and international databases that can be accessed from a

distance by a plethora of actors. Through these practices, personal data clouds are being

transformed and deformed into security clouds, because all data are being seen in the

light of ‘security’. Public and private actors have the ability to tap into these security clouds

that are gathered over each individual citizen at any moment and from any location,

following their own logics, aims and rules. Increasingly, data are used to exercise

permanent surveillance on citizens. Torpey (1998) defined this as the capacity of the

modern state to ‘embrace’ society. Due to digitalization, data about citizens are subjected

to permanent surveillance and monitoring, which is justified on the basis of security

threats. Hence, filing cabinets have become liberated from their fixed physical positions

and can be operated from a distance (Broeders 2007, p. 76). In parallel with this

development, Ericson (2007, p. 1) observed an ‘intensification of security measures’

through an incremental series of legal transformations via ‘innovative surveillance

technologies and networks’.

Security Surveillance Technologies in Europe

In the EU, therefore, we may observe an accumulation as well as an intensification of

information gathering environments, both at the vertical governance level (the databases

we discussed above) and the sub-central and networked information systems, which

include a wide range of data-gathering facilities in the form of closed-circuit television

(CCTV), smart cards, face recognition, data matching, data-mining, private policing,

environmental designs, body scans, body-cams, automatic number plate registration

(ANPR), the storage and interception of telecommunication, the use of GPS for detection

purposes, Radio Frequency Identification (RFID) tags and electronic chips implanted

in goods and vehicles (Ericson 2007, p. 2; Rathenau Instituut 2007; House of Lords 2009,

p. 17; Van ‘t Hof 2007).20 These are the ‘tapping points’ where the (practices of the)

individual citizens are compared with the compositions that have been made of them in

security clouds, where new information is fed into the cloud and where authorities are

prompted into action whenever a ‘risk’ is indicated. CCTV-surveillance, for instance, is

spreading across Europe, although it is ‘impossible’ to provide an exact estimate of

the amount of CCTV in Europe and their levels of performance (European Council 2008).

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In six European capitals, CCTV was common in publicly accessible space such as shops,

banks, restaurants, bars, and transport termini (Hempel & Topfer 2009, pp. 27�34): 29% of

such publicly accessible institutions used some form of video surveillance although the

proliferation was uneven.

Further, a new generation of smart cameras has been introduced in several (semi-)

public spaces, such as shopping malls and railway stations, which can ‘comb through’

a concentration of people, register irregular behaviour (such as shouting or pushing),

allowing for a direct notification to security agents (European Council 2008).21 With face

recognition, CCTV will be given a new functionality. Interpol, the Europe-based interna-

tional law enforcement group, has proposed an automated face-recognition system for

international borders.22 Such a system could require travellers to undergo face scans, and

make the information available to numerous countries. An Interpol face-recognition

database would permit Interpol member nations to search records containing travellers’

personal biometric information, and could be used in conjunction with travel watch lists.

‘We need to get our data to the border entry points. There will be such a large role in the

future for fingerprints and facial recognition,’ said Mark Branchflower, head of Interpol’s

fingerprint unit (20 October 2008).23

Automated Number Plate Recognition (ANPR) is also a form of camera registration

and can integrate a surveillance device (the camera) with the police national computer

and all of its associated databases. ANPR was launched in 1996 in the UK, as part of the

city of London’s defences against the IRA terrorist threat. Since then, ANPR has been

widely applied throughout the EU. Like open street CCTV it targets all under its gaze but

greatly enhances its surveillance capacity as it creates a major investigative resource of a

vehicle’s movements and locations, regardless of the status of the driver. This opens the

possibility of exploiting profiles of non-offenders for the purpose of data-mining by police

(Watson & Walsh 2008, p. 8).

Crucial for the connection between the individual citizen and his or her security cloud

is the introduction of biometrics as a technique for the identification and authentication of

individuals (Lodge 2010, p. 7; Hier 2003, p. 402).24 Biometric information systems are

increasingly woven into existing practices and procedures of international police co-

operation (Lewis 2005, p. 97), particularly when it concerns documents that facilitate cross-

border travel, like e-Identity cards (Lodge 2010, p. 3). The Prum Treaty demands from its

signatories that they create a national DNA database.25 In addition, by adding biometric

data to the system of migration control, digital borders in Europe are transformed into

‘biometric borders’ (Besters & Brom 2010; reference to Amoore 2006). The EU plans to

introduce biometric identifiers by 2015 at various air, sea and land borders to monitor all

non-EU nationals who enter the Schengen zone (Lodge 2010, p. 9). Governments take

recourse to the technology of biometrics, because it relies on ‘permanent physical features’

of the (unique) human body (Besters & Brom 2010, p. 3). Moreover, the biometric data are

stored in a search engine, which is called the Biometric Matching System (BMS). The next

generation of VIS and SISII will also have the same technical infrastructure. However, when

we take the EU27 into account, we may observe a tapestry of different arrangements,

where DNA samples are taken and stored for different purposes, according to different

definitions of what constitutes a criminal offence, and stocked for different periods of

time (Lodge 2010, p. 19). The European Court of Human Rights is more reserved about the

biometrication of society. On 4 December 2008, it handed down a judgment against the

United Kingdom regarding a law enforcement database that includes various items of

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biometric data on individuals (Guild 2010, p. 3), because ‘the blanket and indiscriminate

nature of the powers of retention of fingerprints, cellular samples and DNA profiles of

persons suspected but not convicted of offences failed to strike a fair balance between the

competing public and private interests, and that the UK had overstepped any acceptable

margin of appreciation in this regard’ (p. 3).

Governance Trends in Surveillance

The role of technology in surveillance is pre-eminent and poses formidable

regulatory problems. The Information Commissioner told us that individuals ‘leave

electronic footprints behind with the click of a mouse, making a phone call, paying

with a payment card, using ‘‘joined up’’ government services or just walking down a street

where CCTV is in operation. Our transactions are tracked, our interactions identified and

our preferences profiled � all with potential to build up an increasingly detailed and

intrusive picture of how each of us lives our life. This has increased the capability for

surveillance of the citizen through data collection’ (House of Lords 2009, p. 15).

Spurred on by security crises such as 9/11, the surveillance climate has altered

dramatically. Data-mining and data-profiling are also known as ‘ambient intelligence’.

New technology allows for ambient intelligence and ubiquitous computing, enabling a

total information awareness on the side of not only government and law enforcement

authorities, but also private (security) authorities, exercised by means of Real Time

Intelligence Rooms. A condition for this practice is the cultivation of multi-disciplinary

co-operation, primarily between security agents, but increasingly also between public and

private agents. It is contended that public authorities organize a co-production (or

‘conscription’) with private business to enable the construction of a surveillance society

(ACLU 2004; Hall & Mendel, this issue). Private vigilantism has become part of the

surveillance complex; customers and citizens cannot always distinguish the roles and

responsibilities of the surveillance agents.

An ever-expanding range of instruments, technologies and databases has become

available for the active monitoring of individuals and commodities. Ericson and Haggerty

(2006) have labeled this the ‘surveillant assemblage’ (see also Sheptycki 2007). Increasingly, a

vast volume of data is available to government in general and to law enforcement and

security agencies in particular, to the extent that the physical movement, the decisions, and

even the mental state of each individual is subject to continuous observation. Marx (1998)

said that new surveillance technologies ‘transcend the physical, liberty enhancing limitations

of the old means [that] are constantly appearing’, which ‘probe more deeply, widely and

softly than traditional methods, transcending barriers (whether walls, distance, darkness, skin

or time) that historically made personal information inaccessible’ (1998); ‘The power of

governmental and private organizations to compel disclosure (whether based on law or

circumstance) and to aggregate, analyze and distribute personal information is growing

rapidly’ (1998). Surveillance � particularly exercised through electronic i.e. technological

means � has become an inescapable reality, primarily because governments seek to reduce

risk by means of preventative control (Zureik & Salter 2005, p. 1), culminating in a ‘risk

aversive Panopticon’ (Whitaker 1999, p. 44).

How do these tools, technologies and trends in surveillance affect modes of

(security) governance? The rising surveillance cannot be understood as just a function of

increasing security concerns, where surveillance simply promises the EU citizen a better

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protection against criminality and terrorism. Surveillance also gives rise to new forms of

governance in late modernity. We will analyse some of the emerging trends and signal

some of the challenges for new forms of governance through surveillance.

Governing Through Data-Warehousing and Profiling

Data-warehousing consists of a process of gathering, analyzing, actualizing and

ordering data. These data are centrally stored in an automated database. Data can be

‘mined’ to discover correlations, patterns or trends by ‘sifting through’ large quantities of

data stored in repositories. A core element of the EU counter-terrorism strategy is the

storage of data with the objective to facilitate electronic surveillance (Akdeniz & Walker

2003), which has been formalized by a series of legal instruments. One of these is

the binding EU Directive on the Retention of Telecommunications, which was adopted on

15 March 2006.26 Data retention or data preservation generally refers to the (temporary)

storage of internet traffic, electronic message exchange and mobile telephony. This allows

governmental traffic analysis as well as mass surveillance. The Directive requires Member

States to ensure that communications providers must retain, for a period of between six

months and two years, necessary data as specified in the Directive. The data is required to

be available to competent national authorities in specific cases, ‘for the purpose of the

investigation, detection and prosecution of serious crime, as defined by each Member

State in its national law’. The Data Retention Directive was criticized for a number of

reasons, first of all because it demands the storage of telecommunications data from all

citizens and not just those who are suspected of a crime; it leaves ample discretion to the

individual Member States, e.g. with a view to storage periods, and the legal basis in the

Internal Market provisions was not clear (Hustinx 2010; Hijmans 2010).

Governing Through Interconnectivity

At the level of the EU, several instruments have been adopted and good practices

shared in law enforcement circles which enable the connection between public order

policing and overt as well as covert surveillance of audiences, to enable a prognosis of

the behaviour of political dissidents, football hooligans, mentally deranged people etc,

in order to prevent riots, or in the worst case, attacks. In the UK, this is called ‘forward

intelligence’. Moreover, as indicated above, there is an increasing development towards

authorized access to large national and international databases for police and law

enforcement authorities, which increases the possibilities for multi-disciplinary usage of

data and data-fusion.

The Stockholm Programme, which lays down new ambitions for the EU Area of

Freedom, Security and Justice, advances the thesis that Europe can be made more secure

through an enhanced ‘interoperability’ between data information systems. The sharing of

information across borders and between different agencies is seen as a remedy against the

fragmentation of information. In fact, this will mean that information walls will be further

eroded and that an amalgam may arise of different large data systems. When looking at

the EU Internal Security Strategy, cross-agency cooperation is advocated between police

agencies, civil emergency response and domestic services (Lodge 2010, p. 4). The aim

is furthermore to encourage the interaction between databases, providing effective

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information exchange across the Union and maximizing the opportunities offered by

biometric and other technologies by arguing that it is to improve the security of citizens.

This has paved the path for the creation of a ‘security continuum’, linking different sets of

‘deviant’ behaviour (immigration, crime, terrorism, hooliganism, radicalization, political

protest) (Mitsilegas 2006).

Another dimension of interconnectivity is the close co-operation between public

and private agencies, particularly in the field of surveillance. Sensitive data storage is

‘outsourced’ to private partners in order to gain more efficiency; in the UK, in particular,

data-handling for tax and customs has already been delegated to commercial partners in

India (Lodge 2010, p. 21).

Governing Through Preventive Intervention

The EU also advocates the development from tagging real suspicions to possible

suspicions. An emergent ‘precautionary logic’ (Ericson 2007, p. 25; Zedner 2009) combined

with administrative anxiety about accountability has encouraged more pro-active data-

gathering and risk management. The evolving finality can also be demonstrated in the

new application potential of SIS, which will also be used for counter-terrorism purposes by

virtue of the Prum Treaty.

While other approaches to government seem to yield more uncertainty, governing

through crime sends a strong signal of certainty. When there is a persistent threat that is

said to affect the quality of life, or a catastrophic failure in a risk management system for

which the government is held responsible, criminalization through counter-law provides

an ending to the political narrative of uncertainty in the short term, and perpetuates the

myth of governability in the long term. (Ericson 2007, p. 207)

The digitalization of borders which will control the migration flow from and to

Europe allows for the detection of migration patterns and the identification of so-called

risk groups (Besters & Brom 2010, p. 4). Hence, the digitalization of borders facilitates a

form of proactive risk management. The focus on an identification ‘as early as possible’ of

signs of radicalization and of the preparation of terrorist activities can be traced in the

European discourse, e.g. the EU Strategy on Terrorism and Radicalization, the EU Security

Strategy, and the more recent EU Internal Security Strategy. Governments have expanded

their remit in the field of data-collection, first of all by means of new strategies of data-

gathering, namely by data-profiling, but secondly by access to large-scale databases of

people who have not committed criminal offences (Sietsma 2007, p. 13); this ‘future

perfect’ (Bigo 1994, quoted in Guild 2010) fundamentally alters the relationship between

governments and citizens, in that the presumption of innocence tends to whither as a core

principle of modern criminal justice systems. This heralds the transformation of a security

governance built on trust towards a security governance based on suspicion.

Governing Through Mental Disciplining

The effect of total surveillance or total information awareness is that individuals know

that they are continuously watched by state and private authorities, to the extent that they

discipline and regulate themselves mentally (Hier 2003, p. 401). In this regard, Ericson (2007,

p. 29) notes that ‘the police power is perfected when it results in self-policing among

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members of the population. The liberal social imaginary of the ‘house of certainty’ is a

house of discipline as self-policing. The individual who knows that she is seen through by

the surveillant assemblage, who recognizes her visibility, will internalize the gaze. That is,

she will not only assume responsibility for the constraints of power, but will have that

power inscribed in her to the point where she polices others as well as herself. The

Leviathan-like surveillance net is incrementally enlarged through new legislation (not

always passed by parliament but de-centrally widened by municipal authorities who then

‘export’ their new surveillance practice to other cities) to include ever new groups of the

population, who for reasons of safety, education, health, housing or social benefit are made

subject of more active monitoring. Technological surveillance becomes a vehicle for a

moral discourse in which individuals find themselves webbed in a vocabulary of fraud

allegations (Hier 2003). Social engineering has politically been reframed in terms of

individual responsibilization.

Towards an Ethical Governance of European Surveillance Practices

At the level of the EU, the accumulation of surveillance measures, the speed at

which measures have been adopted, and the expansion of functionalities of information

systems may lead to new paradox: how can the EU as an emerging security actor govern

security clouds? Given the intrusiveness of many surveillance technologies, the relative

absence of public discussion about this issue is surprising. The synergy between

information and communication technology, biotechnology, and nanotechnology pro-

mises a fundamental shift of every aspect of life. ‘Converging Technologies’ will form an

invisible technical infrastructure for human action. As the convergence draws in other

technologies and technology-enabling sciences, it would appear that nothing can escape

the reach of converging technologies and that the mind, social interactions, communica-

tion, and emotional states can all be engineered. Humans may end up surrendering their

freedom and responsibility to a mechanical world that acts for them.27

An ethics-based governance of surveillance28 in Europe can be consolidated by a

comprehensive legal framework, which has been tabled and proposed by the European

Commission. This may help to counter the current fragmented situation, as they deal with

instruments of the former ‘first pillar’, the data protection directive of 1995 and the data

retention directive of 2006; in the former ‘Third Pillar’, the Member States have to

implement the 2008 Framework Decision on data protection which stems from the former

third pillar; moreover, several legal instruments such as the Prum Convention contain

specific chapters on data protection (Buttarelli 2010, p. 32). The differentiation between

member states regarding the application of standards for the registration of persons has

to be countered, and this has been argued by the Joint Supervisory Authority of Schengen

2005 and 2007 (Besters & Brom 2010).29

Any new surveillance measure should be assessed and scrutinized prior to its

introduction. Hence, the EU and the member states can develop an impact assessment

tool (Buttarelli 2010). The European Data Protection Supervisor has the task to conduct

prior checking of legislation.30 Lodge (2010, p. 29) proposes that the European Data

Protection Supervisor should be involved at all stages in the Commission’s process of

drafting recommendations, communications and proposed legislation. In addition, the

European Parliament should demand a risk-impact assessment for all e-activities and R&D

includes high specification technical provisions to safeguard privacy (Lodge 2010, p. 30).

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The EU Stockholm Programme proposes a so-called certification scheme for privacy-aware

technologies, products and services (Lodge 2010, p. 3).

European (security) surveillance instruments should comply with national and

international data protection standards, and they should be designed in such a way that

they do not infringe the personal lives of citizens (European Convention on Human Rights

(ECHR), art. 8). Moreover, art. 7 of the Fundamental Rights Charter of the Union reads

that everyone has the right to respect for his or her private and family life, home and

communications. Article 8 provides that everyone has the right to the protection of

personal data concerning him or her; that such data must be processed fairly for specified

purposes and on the basis of the consent of the person concerned or some other

legitimate basis laid down by law; that everyone has the right of access to data which has

been collected concerning him or her, and the right to have it rectified; and that

compliance with these rules shall be subject to control by an independent authority.

In this light, there have been questions about the independence of Europol to assess the

transfer of financial data to the USA.

Essential data protection principles are finality or purpose-limitation (data may only

be used for a stated purpose), proportionality (no data collection beyond as stated limit),

and subsidiarity (no data collection if the measure can be achieved by less privacy-intrusive

means). Lodge (2010, p. 8) argues that regardless of the safeguards of ECHR, art. 8, remote

and automated monitoring of all the activities of persons ‘facilitates and acclimatizes

the public to a pervasive, stealthy and unaccountable surveillance that ultimately

insecuritizes individuals and society: quantum surveillance’. Governmental restraint (based

on classic data protection principles of finality, proportionality and subsidiarity) should be

exercised in the mass collection of data.

Surveillance measures should only be used when (externally) evaluated as effective.

This proven effectiveness may help to avoid function creep (Besters & Brom 2010). To

achieve this, sunset-clauses should be introduced for each new surveillance measure,

allowing parliaments and civil oversight bodies (to propose) to withdraw the relevant

measure. Proven effectiveness, efficiency and proportionality. Sunset-clauses may help to

prevent mission-creep in the policy use of ICT-technology (see e.g. Lodge 2010, p. 11).

Data may not migrate between authorities, services and databases without approval

of the individual who is the owner of the data. Here, one could think of a prior consent

system, more or less in line with the German principle of informationelle Selbstbestimmung.

Moreover, there should be more emphasis on the integrity of personal data in networked

environments. Hence, the planned interconnection (‘interoperability’) between electronic

databases between the current EU databases in the fields of security, law enforcement,

border control, migration control and asylum control should not only be done on the basis

of proven effectiveness, but should rest on shielded data environments. Retention of data

should also be considered to be based on individual consent.31 Information rights are

pivotal.

Governments, whether local, national or international, know a lot more about

societies, individual citizens, their movements, relationships, interactions and their

transactions. Surveillance may induce more normalizing effects on conduct, self-percep-

tion, personality, and world-view, than ever before. Regulation of surveillance will be

delegated more from persons to technology and from public, governmental parties to

private organizations and citizens: this changes governance relationships. The govern-

ability of technologies will change due to growing uncertainty and complexity. The

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perception and the nature of privacy invasions may change as well. As noted before,

security governance nowadays embodies a focus from reaction, retribution and

rehabilitation, towards prevention and risk control. Freedom and personal responsibility

may affect the ways in which persons perceive their own and others’ identities; they need

not automatically undermine conceptions of morality and law that take personal

responsibility and free will as their starting points.

The inclusion of norms in technology involves increasing challenges to moral

outlooks in which the free choice to act morally or legally right is primordial, and new

challenges arise regarding the legitimacy of arrangements for regulation and enforcement

(Teeuw & Vedder 2008, pp. 23�24).

Despite the pivotal importance of legally enshrined data protection mechanisms, the

combination of ever expanding databases, rapidly emerging new surveillance technologies

and the accompanying forms of governance through surveillance make it necessary to look

beyond those legal rules and take into account the deeper societal transformations

encouraged by surveillance. Currently available standards may be insufficient when

measured against the vast potential of the emergent European surveillance society and

cannot provide the answer to the deeper questions of surveillance. With growing

technological means, state authorities have shifted the purposes of data-gathering and

exchange practices, but mainly gained power and knowledge about sizeable parts of the

population through performing searches on the basis of specific characteristics by means of

sophisticated data- and text-mining techniques. Irrespective of large-scale accumulation of

data governed in a horizontal or vertical manner, warning shots have been given that we

may be sleepwalking into a surveillance society. Data which have been gathered by

different public authorities can be concatenated in a powerful manner, such that new

knowledge or intelligence may arise from it.

A political-moral reflection is also required on the need for constructing (more)

security clouds and the interaction between security providers and individual citizens.

Bringing an ethical reflection into the arena of surveillance demands a multidimensional

approach, which takes international data protection standards as a point of departure but

which may reach beyond this framework in order to keep pace with the accelerated growth

of the surveillance complex. Lodge (2010, p. 1) is of the opinion that the transformational

impact of ICT on society and governance ‘proceeds without sufficient ethical, socio-legal or

political control, public consent or public accountability’. An ethics-based governance of

surveillance is characterized by a high level of adaptability to newly arising challenges;

moreover, it has to evoke moral reflection as well as having the ability to be incorporated in

the daily working practices of security professionals as well as supervisors.

Professionals who are endowed with surveillance powers should receive ethics and

data protection training at several stages throughout their career (see e.g. Neyroud &

Beckley 2001, p. 175f). Concerning, organizational transparency about surveillance

instruments and the processes employed for data-gathering and the decisions which are

based on data-collection and data-analysis,32 the EU should introduce an Information

Charter, imposing norms on public and private authorities in the EU Member States.

Accountability procedures for the surveilling authority and judicial redress for individuals

are essential in this regard (Marx 1998, p. 113). At the level of independent oversight, it

should be noted that on 9 March 2010, the EU Court of Justice ruled on criteria for the

independence of data protection authorities under EU law (Hijmans 2010).

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Last but not least, checks and balances in the monitoring of the working of and

interface between European information systems is pivotal in an ethics-based governance

of surveillance. The control of European surveillance suffers from a democratic deficit

(Bohre 2010) as politicians are not obliged to account for surveillance issues if not based

on publicly accessible information and there has been limited attention from the media.

The introduction of biometric passports, like in the Netherlands, has significantly enhanced

the power of the state to the extent that individual citizens can be identified, profiled,

monitored and searched. This can have deep consequences for the exercise of classical

democratic rights. A cultural change is required from ‘collect before you select’ to ‘select

before you collect’ (Hustinx 2010). One of the most important conditions is to cultivate a

healthy ethical professionalism, in order to guarantee the integrity of data-handling.

In most democratically ruled societies, the governance of security surveillance resides

with a well-developed system for oversight at different levels, including parliaments

(parliamentary committees, parliamentary inquiries), data supervision authorities, civilian

oversight bodies (ombudsmen) and special complaints boards. In view of the emerging

security clouds, these oversight systems need to be encompassing, coherent, and

consistent.

Concluding Notes

The EU’s role as a security actor is strongly interrelated with the framing of

transnational security challenges: terrorism, organized crime, illegal migration. Building on

the narrative of a Europe that serves and protects its citizens, numerous databases have

been erected for a wide range of security-enhancing purposes. Increasingly, technological

innovation facilitates the introduction of networked surveillance technology, and this is

strongly encouraged by relevant EU actors (Den Boer 2011). The functionalities of these

new devices are increasingly subject to interconnection, convergence and synergy. At the

same time, these new security surveillance devices make it possible to invade deeper into

the private lives of European citizens. For instance, the introduction of biometric identifiers

in international data systems imply that individuals carry the border within themselves:

surveillance technologies make it possible to replace physical border controls with

omnipresent controls which allow for an intervention prior to the potential perpetration of

a crime.

In this article we have given an overview of the main surveillance trends and

instruments in the European Union, as well as highlighted some of the new trends such as

‘interoperability’ and pro-activity through intelligence-gathering. We have argued that

surveillance trends have a deep transformative effect on governance relationships, as it

profoundly affects the relationship between governmental authorities and citizens. We

have also given several examples of functional spillover of data use, e.g. from crime to

terrorism and radicalization, and from migration control into law enforcement. Moreover,

the close co-operation between the public sector and corporate security, the use of more

sophisticated methods of data-analysis, as well as the trans-nationalization of data-

exchange leads us into a diffused web of informational connections (‘Security Cloud’)

amidst differentiated accountability mechanisms33 for data exchange.34

Given the deep repercussions on governance relationships, we argue the need for a

multi-dimensional ethical framework that allows for a systematic pre-assessment of

surveillance instruments as well as information rights for European citizens of where their

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data are, for what purpose their data are used, and when their data are removed or

destroyed. For security professionals across the whole range, this implies the need for a

deeply engrained awareness of their power through surveillance, and the potential for

loss, damage, or misuse of privacy sensitive information. More than ever, ‘ethics of

surveillance’ is a crucial issue to address during the continuous training and education of

security professionals, at public and private level, as well as national and international

level.

ACKNOWLEDGEMENTS

The authors would like to thank the reviewers for their very useful comments. Any

omissions or errors are the responsibility of the authors.

NOTES

1. Legal basis of SIS II: Regulation (EC) No 1987/2006 of 20 December 2006 (OJ L 318/4,

28.12.2006) and Council Decision 2007/533/JHA of 12 June 2007 (OJ L 205/63, 7.8.2007)

on the establishment, operation and use of the second generation Schengen Information

System.

2. Council of the European Union (2011) ‘Provision of SIS and SIRENE statistics to the

Council’, 9928/11, Brussels, 10 May 2011.

3. Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establish-

ment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the

Dublin Convention.

4. VIS is based on the Visa Code (Regulation EC) No 810/2009 of the European Parliament

and of the Council of 13 July 2009 establishing a Community Code on Visas; relevant

legislation includes: Council Decision 2004/512/EC of 8 June 2004 establishing the Visa

Information System; Regulation (EC) No 767/2008 of the European Parliament and of the

Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of

data between the Member States on short-stay visas (VIS Regulation); Commission

Decision of 4 May 2010 on the Security Plan for the Operation of the Visa Information

System (2010/260/EU).

5. The establishment of the Customs Information System is provided in Title V of the

Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the

administrative authorities of the Member States and cooperation between the latter and

the Commission to ensure the correct application of the law on customs and agricultural

matters.

6. For a complete oversight see European Commission (2010), ‘Overview of information

management in the area of freedom, security and justice’, COM(2010)385 final, Brussels

20.7.2010.

7. For a report of the European Parliament’s Policy Department C on Citizen’s Rights and

Constitutional Affairs on Eurosur, see PE 408.295 Briefing Paper ‘An analysis of the

Commission communications on future development of Frontex and the creation of a

European border surveillance system (Eurosur)’, June 2008. The briefing paper opines

that the evaluation of Frontex falls short of ‘critically assessing the consistence of Frontex

activities with the fundamental values upheld by the EU’.

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8. Agreement between the European Union and the United States of America on the

processing and transfer of Passenger Name Record (PNR) data by air carriers to the

United States Department of Homeland Security (DHS) (2007 PNR Agreement); OJ L 204

of 4.8.2007, p. 18 (renewed agreement).

9. United States’ Customs and Border Protection (US�CBP) and the Canada Border Services

Agency (CBSA).

10. On 14 July 2008, the American Civil Liberties Union ACLU announced that the US

authorities had tagged the names of 400,000 individuals on the terrorist suspects list,

95% of whom are foreign or not a resident of the United States. 50,000 people were

tagged as potentially suspicious with regard to (terrorist attacks on) air transport, while

only 16 names were known to the authorities when the 9/11 attacks took place (ANP

Press, 14 July 2008).

11. European Commission (2010), ‘On the global approach to transfers of Passenger Name

Record (PNR) data to third countries’, COM(2010) 492 final, Brussels, 21.9.2010.

12. See also the Opinion of the European Union Agency for Fundamental Rights on the

Proposal for a Directive on the use of Passenger Name Record (PNR) data for the

prevention, detection, investigation and prosecution of terrorist offences and serious

crime (COM(2011) 32 final) (FRA Opinion 1/2011). Vienna, 14 June 2011; http://www.

fra.europa.eu/fraWebsite/attachments/FRA-PNR-Opinion-June2011.pdf (accessed 1 July

2011).

13. Society for Worldwide Interbank Financial Telecommunication, which is a company used

in roughly 80% of all international transactions.

14. Agreement between the European Union and the United States of America on the

processing and transfer of Financial Messaging data from the European Union to the

United States for the purposes of the Terrorist Finance Tracking Program, OJ L 8/11-16,

13.1.2010.

15. European Data Protection Supervisor, Press Release, 22 June 2010 Source: http://www.

edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/PressNews/

Press/2010/EDPS-2010-10_TFTP_EN.pdf; accessed 13 September 2010; OJ C 355, vol. 53,

29/12/2010, pp. 10�16.

16. OJ L 8/11.

17. Report on the inspection of Europol’s implementation of the TFTP Agreement,

conducted in November 2010 by the Europol Joint Supervisory Body, Report No. JSB/

INS. 11-07, 1 March 2011 (JSB Europol Inspection Report 11-07); see also Commission

report on the joint review of the implementation of the Agreement between the

European Union and the United States of America on the processing and transfer of

Financial Messaging data from the European Union to the United States for the purposes

of the Terrorist Finance Tracking Program 17�18 February 2011, Brussels 16.3.2011.

18. European Council, ‘The Stockholm Programme � An open and secure Europe serving and

protecting citizens’, 4 May 2010 OJ C 115.

19. European Commission, Communication from the Commission to the European Parlia-

ment and the Council, ‘The EU internal security strategy in action: Five steps towards a

more secure Europe’, Brussels, 22.11.2010, COM (2010) 673 final.

20. ‘An RFID chip contains a small chip and an antenna to communicate on radio frequency

. . . The combination of a unique identity together with the place and time the identity is

displayed, can serve to track movements through an RFID system’. (Van ‘t Hof 2007, p. 15;

see also http://epic.org).

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21. For a discussion on CCTV, see European Parliament Report on the evolution of CCTV

video surveillance, PE 419.588, April 2009.

22. http://epic.org/privacy/facerecognition/ (accessed 23 June 2011).

23. Source: Electronic Privacy Information Centre, http://epic.org/privacy/facerecognition/.

24. For a discussion, see European Parliament Working Document on problem of profiling

(2008).

25. The European Court of Human Rights (S and Marper v United Kingdom, for a discussion on

this ruling, see also Guild 2010, p. 5) has specified its criteria of the lawfulness of the

storage of DNA-information in national databases, and this may have consequences for

the functioning of the Prum system (Hustinx 2010).

26. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on

the retention of data generated or processed in connection with the provisions of

publicly available electronic communications services or of public communications

networks (OJ 2006 L 105, p. 54).

27. Nordmann, A. (2004) Converging Technologies � Shaping the Future of European Societies,

Brussels: European Commission � Directorate-General for Research.

28. Inspired by e.g. The European Code of Police Ethics, Recommendation Rec (2001)10

adopted by the Committee of Ministers of the Council of Europe on 19 September 2001

and explanatory memorandum, Council of Europe Publishing, March 2002; art. 3 of the

Police Service of Northern Ireland Code of Ethics 2008 (http://www.nipolicingboard.org.

uk/final_code_of_ethics-2.pdf).

29. Ombudsman of The Netherlands, rapport Toegang Geweigerd (Access denied).

30. Lodge (2010, p. 23) is however of the opinion that currently, despite the fact that

Ombudsmen and Data Protection Registrars are essential, they are ‘insufficiently

influential’ at the stage before draft rules are finalized, certainly when it concerns

(semi-)public-private partnerships in the handling of data.

31. This is in line with the principle of informational self-determination, which exists in

Germany. In The Netherlands, citizens have been given the opportunity to opt out of the

Electronic Patient Dossier system.

32. See for instance background paper of the European Data Protection Supervisor, ‘Public

access to documents and data protection’ (2005); http://www.edps.europa.eu/EDPSWEB/

webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/BackgroundP/05-07_

BP_accesstodocuments_EN.pdf.

33. Geneva Centre for the Democratic Control of Armed Forces, Parliamentary Oversight of

the Security Sector. Principles, mechanisms and practices, Geneva 2003.

34. Adviescommissie Informatiestromen Veiligheid 2007; Gill 2006, p. 33.

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