The Surveillance Triangle: Authorities, Data subjects and Means

Surveillance authorities currently face several challenges, ranging from tackling the consequences of the recent Paris and Brussels terrorist attacks, the issue of an alledged lack of data sharing for security  purposes (prevention, detection and investigation of serious crimes, including terrorism), reconciliating the migrant crisis and the challenges it brings along with border protection concerns. On a broader scale, negotiations surrounding the Privacy Shield and the finalisation of the General Data Protection Regulation are on the agenda. Moreover, the enforcement of surveillance-related decisions or judgments leads to increasing constitutionalization of this field. Within the first perspective, the conference will address the following issues:

• Does enhanced surveillance always lead to enhanced security?
• Which other means, apart from surveillance, are available to foster security? In this context, does surveillance necessailry imply bulk data retention? Or could alternative approaches be seized?
• Intelligence cooperation and data exchange between authorities within and outside EU need to find common understading at the EU level on: What is intelligence, who can have access to collected information and for what purposes?
• What impact does the lack of EU compentence on matters of national security have on intelligence sharing within or outside EU?
• The growing demand of reconciliation of security and surveillance with privacy: do new surveillance measures guarantee the respect of both?
• The future of the Privacy Shield: enforcement and relevance for US businesses
• The risks and benefits of surveillance by private controllers (EU and US based)
• Blurring boundaries between surveillance and profiling techniques and the use of profiling in surveillance
• The constitutionalization effect on the field of privacy through surveillance enforcement

Chair and discussant: Francesca Galli, Maastricht University

Speakers:

• Xavier Tracol, Senior Legal Officer at Eurojust: “From prohibiting generalised mass surveillance to permitting targeted retention of both traffic and location data for the purpose of fighting serious crime”
• Christiane Hoehn, Principal Advisor to the EU Counter-Terrorism Coordinator: “The information sharing environment in counter-terrorism: Challenges and perspectives”
• Elif Erdemoglu, Lecturer at The Hague University of Applied Sciences / Researcher at Cybersecurity Center of Expertise, The Hague University of Applied Sciences: “The risks and benefits of surveillance by private controllers (EU and US based)”
• Elspeth Guild, Jean Monnet Professor ad personam at Queen Mary, University of London as well as at the Radboud University Nijmegen, Netherlands

Surveillance often encompasses the general public and is not targeted to particular individuals who are suspects of being involved in serious crime activities, including the preparation of a terrorist attack. Within this perspective, it will be discussed how surveillance should be better regulated in order to achieve its goal most efficiently, whether the expansion of surveillance means is always beneficial to security and what are data subjects’ rights with regard to surveillance. More precisely, the following topics will be addressed:

• The necessity of effective enforcement of data subjects’ rights with regard to surveillance
• How broad should surveillance be – applying only to suspects or general public?
• Do surveillance policies affect certain communities disproportionally and how could this be addressed?
• What are the necessary limitations of surveillance and the relevant criteria in this regard?
• The undefined notions of ‘public security’ and ‘national security’ in EU Treaties but also problematic at national legal contexts?
• The issue of consent in surveillance

Chair and discussant: Maja Brkan, Maastricht University

Speakers:

• Gloria Gonzalez Fuster, Reasearch Professor at LSTS at Vrije Universiteit Brussels: “Who is the data subject: the surveillance perspective”
• Lorna Woods, Chair of Internet Law, School of Law at the University of Essex: “The Investigatory Powers Act: bulk powers under control?”
• Ike Kamphof, Assistant Professor at the Department of Philosophy at Maastricht University: “Securing Privacy. ​How Homecare Surveillance Shows the Need for a Civil Art next to Rules.”

Panel III: Means of Surveillance

The third issue addressed will be the perspective of the means of surveillance and the interplay between, on the one hand, legal limitations and possibilities in this regard and, on the other hand, the constant technical development of innovative means of surveillance. Encryption, Privacy by Design and by Default, anonymization, dealing with big and raw data have become a part of constant legal and political debate in Europe and the world. The recent Apple dispute in the US epitomizes the importance of this debate. Therefore, this perspective will address the following issues:

• Legal regulation of technical means of surveillance: do the rigidity of the legal regime and the incapacity to quickly adapt to technical changes prevent more effective surveillance?
• The (un)necessary legal limitations of technical means of surveillance
• The policies of private controllers and the newest technical developments: in the absence of comprehensive legal regime, are private controllers leading the way in regulation?

Chair and discussant: Sergio Carrera, CEPS and Vigjilenca Abazi, Maastricht University

Speakers:

• Rocco Bellanova, Post-doctoral researcher at University of Amsterdam (UVA): “Testing (Surveillance) Devices? Data protection instruments beyond compliance”
• Annika Richterich, Assistant Professor in Digital Culture Literature and Art, Faculty of Arts and Social Sciences at Maastricht University: “Hacking Surveillance: Civic Tech Monitoring as (Data) Activism”
• Anna Dimitrova, Associate Professor in International affairs, Department of International Affairs at ESSCA School of Management, Paris: “Balancing National Security and Data Protection: The Role of EU and US Policy-makers and Courts before and after the NSA Affair” 
• Federico Fabbrini, Full Professor of Law at the School of Law & Government of Dublin City University