Onlangs heeft internationale advocatenorganisatie Council of Bars and Law Societies of Europe (CCBE) het jaarverslag 2014 gepubliceerd. In dat jaarverslag maakt de CCBE zich zorgen over de gevolgen van de zich ontwikkelende surveillance samenleving.
Aldo Bulgarelli, de voorzitter, schrijft in zijn inleiding:
2014 was an election year that saw a significant power shift in the European Union. For the first time, the European Parliament played a key role in the appointment of the President of the European Commission by encouraging the major parties to put forward leading candidates. An elected parliament, a range of political parties, and a leader of the executive branch chosen from among them: is this a burgeoning democracy at work?
This is not a question for constitutionalists or politicians, but for lawyers and citizens. Mass surveillance of electronic communications, made easier and cheaper by advances in technology, is a rising threat to the rule of law. Lawyer-client confidentiality is under threat as emails, phone calls and cloud storage are swept up by intelligence agencies. Professional secrecy, the confidentiality of communications between lawyer and client, is an essential guarantee of a fair and impartial trial, maintaining equality of arms and allowing citizens and businesses to hold their government to account through the court system.
The issue of confidentiality appears in a number of important topics on the European agenda: the reform of the data protection package of course, but also the proposed European Public Prosecutor’s Office, the reform of the transparency register for lobbyists, the revision of the anti-money laundering directive, and planned measures for reinforcing procedural safeguards in criminal cases.
The CCBE aims to keep the privacy of citizens at the core of the legislative work of the European institutions. To this effect, I believe that maintaining a constant contact on this issue between the Parliament and the legal profession will be key to strengthening the common area for justice and fundamental rights. This is an issue that I shared with interlocutors from Bars in Europe, the Americas, Japan, and China during meetings throughout the year.
I believe that the legal profession should remain at the forefront of innovation and change, in order to carry its principles into the 21st century. This year I launched a discussion on the future of the profession within the unique forum that is the CCBE, exploring avenues for the conditions under which we work, and the challenges we will have to face. This exercise is especially important for young lawyers: their practice will be profoundly different from ours as the world changes. How should we handle new technologies and increased globalisation? What can be done to ensure that the legal profession remains relevant?
I hope that you, dear colleagues and concerned citizens, will join this debate and carry it forward wherever you go, for the benefit of justice, fairness and the rule of law.
Elders in het jaarverslag worden surveillance en datamining nader besproken:
Government Surveillance, Mass Data Mining and Professional Secrecy
The CCBE kept drawing attention to this issue throughout the year, expressing its concern over the revelations of systematic government surveillance of European citizens, and calling on the European institutions to defend the confidentiality of lawyer-client communications as a key element of the rule of law. In particular, the CCBE strongly welcomed the European Parliament’s Resolution on Electronic Mass Surveillance that was adopted in March 2014, and liaised with MEPs for the launch of a so-called ‘Digital Habeas Corpus’ to protect fundamental rights, including the rule of law and the confidentiality of lawyer-client communications. In April, the CCBE also adopted a Comparative Study on Governmental Surveillance of Lawyers’ Data in the Cloud. This study is concerned with the question of the extent to which, in different European jurisdictions, lawyers’ electronic data is susceptible to governmental access, and the rules and conditions surrounding such access. The study first provides a short overview of regulations in different jurisdictions. Following this national-level analysis, a short overview is provided of the most obvious similarities in the regulations. The report contains a number of conclusions and recommendations for common actions.