EU Through the Looking Glass: Legalizing Surveillance to Combat Terror

Europe is at a point of collective evolution, mired in a refugee crisis, facing changing demographics, an upwards trend of terror attacks, and growing political push-back towards the right. Many states are already making changes, having found themselves both collectively and individually ill-prepared to handle the evolving security threats to Western society. European states are first looking internally, prioritizing domestic changes to address new security challenges, before turning toward a collective adjustment. One of the biggest hampers to collective security in Europe has been the variation in permitted legal data collection and abilities to surveil domestic populations.  It is imperative that regional and international intelligence entities and law enforcement agencies are able to cooperatively gather and share critical information.

In addition to resource, human, and economic security challenges, EU member-states will need to be able to monitor existing populations as well as new ones that emerge. Surveillance will be essential for managing future threats and the growing trend of homegrown radicalization among extremist and isolated factions. Radical Islam has declared war on the West, frequently bating the “Crusader armies of Rome” and detailing the destruction that will be brought to Europe and beyond. This rhetoric has found support in some European communities, prompting foreign fighters to travel to fight with the Islamic State of Iraq and the Levant (ISIL) in the Middle East. In recent months, ISIL leaders have encouraged those who wish to fight to wage the war at home in the United States and Europe. The European Union must meet the gravity of covert, cell-based guerrilla terrorism, which has already yielded losing battles through successful terror attacks.

The refugee crisis has unfortunately created an opportunity for insurgents from terror organizations to gain access to Europe. As coalition forces gain territory from ISIL, there is the legitimate threat of unaccounted for foreign fighters returning to Europe. European authorities will need to be able to make distinctions between those who seek peace and those who bring war, which can only be achieved through improved intelligence capabilities.

Individuals whether inspired by radical Islam, or IS fighters returning to their native countries, form cells that operate mostly independently, are decentralized in nature, and have civilian targets. The 2015 attacks in Paris were pre-planned with lengthy consideration, but the Nice 2016 truck attack and attacks in Brussels were more impulsive. Authorities must be prepared for both types of threat, and a crucial gap in capability lies in the need to capture data about actors and their intentions

The threat is unequivocal, and though it has been illegal for most European nations to surveil domestically, some states are making necessary legal changes. Germany has proposed a broad range of new counter-terrorism and security measures which include enhanced surveillance. Denmark has also expanded anti-terrorism legislation with focus on surveillance measures, while Switzerland has granted new surveillance powers to intelligence agencies. Sweden and Norway have complex privacy laws, but have enacted legislation that allows for some degree of domestic and internet surveillance in response to attacks in neighboring nations and at home. This trend in legal expansion of law enforcement capability is imperative, and will continue to change as different nations balance security measures and civil liberties to fit evolving political climates and security needs.

Lawful data interception is one of the most crucial and non-violent tools at law enforcement disposal to gain information, watch trends, identify individuals to monitor, and locate threats. For critics, domestic surveillance represents a nightmare of an authoritarian monitoring akin to the dystopian world of 1984; concerning against the historical backdrop of totalitarian regimes. Lawful interception policies will need to balance power and freedom against threats as they develop. Preparedness and correct identification of political extremism and violent radicalization will be vital to protecting an inclusive European Union. Failures to foster international cooperation will leave the European Union, and its member states, to fight an asymmetrical war against terror that they will continue to lose.