The EU wants to more closely control the trade of the European surveillance industry with autocratic regimes. After two years of tough negotiations, the member states have found a „compromise“: they are against anything that could limit the trade of spyware. Germany agreed as well.

Daniel Moßbrucker accompanies the reform of the EU Dual Use Regulation for Reporters Without Borders. The human rights NGO works globally for the protection of journalists and fights against censorship online and offline. This text is the translation of the original German version.

On 28 May, the UN special rapporteur on the right to freedom of opinion and expression, David Kaye, appealed to the international community and demanded a moratorium on the sale of spying technology. Everywhere in the world, journalists, activists and opposition members are being monitored with state-of-the-art technology, trade is flourishing – and global regulation is at best in its infancy.

With the same arguments, the EU Commission had already submitted a reform proposal in 2016 for the European control system. The items include hacking software, large data centres for data retention, IMSI catchers for monitoring demonstrations and equipment for telecommunications surveillance.

For more than two years, the EU member states had been arguing fiercely about the Commission’s plans before they presented their „compromise“ exactly one week after Kaye’s demand. They are against any plans that would allow stronger controls on surveillance technology.

„Deleted“ is now written in all the places, in which the Commission wanted to change the regulation in the so-called cyber cluster of the underlying Dual Use Regulation. „Cyber cluster“ is the unofficial name for a bunch of specific suggestions that the Commission made to better address human rights safeguards in the Dual Use Regulation.

Votes of the Council of the European Union are secret, but government circles tell us that the vote of the EU states was unanimous – Germany also agreed, so that nothing should change for the protection of human rights against surveillance in injustice regimes.

No majority, no human rights

In the ranks of the European Parliament there is partial bewilderment at the agreement, which is not actually an agreement. According to reports, the member states are still deeply divided on some details, so that groups of member states have blocked each other for years.

In the end, they decided to drop the cyber cluster altogether, and instead implemented some industrial demands, for example less bureaucracy in the export of dual-use goods. Klaus Buchner is member of the European Parliament for the German Ecological Democratic Party (ÖDP) and led the negotiations for the European Parliament. He comments disappointedly:

We have waited two years for the member states and they do not propose a solution in the end. It is completely irresponsible that none of the measures proposed by the Commission or by us in the European Parliament to regulate trade in surveillance technology has been adopted. Industry has done a good job.

Indeed, the influence of industry on Member States has been massive from the start. This has been shown by Reporters Without Borders and netzpolitik.org, who jointly published the Dual Use Leaks in October: On hundreds of pages of internal German and European negotiation protocols, it became clear how the Federal Government wanted to meet the demands of industry in particular, and how it wanted to improve human rights standards downstream. After the German negotiators had brought in Germany’s economic weight for industrial interests, they were surprised by the resistance of other states such as Sweden and Finland to human rights standards.

This block finally prevailed, so that the Federal Government now also agreed to the version in which there was no improvement at all in the trade of spying technology.

Government shifts responsibility to parliament

An internal document of the Federal Government now suggests that the Federal Government hopes again to be able to make a difference through its (so far not existing) negotiating skills. The Federal Government was the only country to add a „protocol declaration“ to the secret vote. In the paper, which is available to us, it says among other things:

Given that the legislative process of the recast has already lasted for several years, the Federal Republic of Germany agrees to the proposed Council mandate in the understanding that in the negotiations with the European Parliament possibilities for prospective controls of cyber-surveillance items will be assessed that provide for legal certainty and are implementable in practice for both authorities as authorities as well as companies.

In other words: „We would have actually wanted to do something for human rights, but we agree now, so that things can continue at last – and perhaps the European Parliament can still do something about it.“

Fundamental rejection by Rapporteur

In the legislative process, the positioning of the member states now at least enables the trilogue in which the Commission, Parliament and member states try to reach a consensus.

Due to the blockades in the Council of the Member States, recent concerns among the Member States surfaced that the Commission could withdraw the dual-use dossier – which would as well have been a missed opportunity to implement important industrial interests in reducing bureaucracy. The German government probably wanted to spare itself the hassle of dealing with the powerful German industry, which in its lobby papers openly rages against stricter controls of surveillance technology.

The German protocol notice may now be an honourable declaration of intent, but it is legally meaningless and the final admission of the Federal Government to have failed in the protection of human rights. Formally, the Federal Government has agreed to the „compromise“ – and other states will remind Germany of this.

The negotiations in the trilogue will now be conducted by the Finn Teemu Sepponen on behalf of the member states: Finland fundamentally rejects the cyber cluster.

Catch-all clause for unknown new products

How the trilogue could end is completely unclear. Parliament and the Commission have to reach an agreement, although the EU member states reject some innovations in export control in principle.

For example, the Commission and Parliament – albeit differently in detail – are in favour of a so-called catch-all clause in which human rights risks are assessed by both states and companies. So far, only goods that are explicitly mentioned in lists of regulation have been controlled. Then companies would have to approve their exports by national inspection authorities.

But what if companies manufacture surveillance products that nobody knows about? They then do not have to ask for an export licence, and logically the EU states are not aware of the existence of the products at all, so that they are not included in the lists of goods either.

This is a loophole that the Commission and Parliament want to close: In future, companies should also check for themselves whether their products can violate human rights – and then ask for a licence. Ultimately, this would only be the consistent implementation of their obligation under international law, namely the UN’s guiding principles for business and human rights.

For the majority of industry, however, such inspection obligations of due diligence are a red flag: companies threaten to prophylactically obtain approval for virtually all products due to „legal uncertainties“, thereby paralysing the national inspection authorities. An argument that is catching on in the member states. The industry even lobbied away Germany’s commitment to incorporating the UN guiding principles into national law.

German companies supply surveillance technology

Parliament and member states are similarly incompatible when it comes to transparency: In their vote, the parliamentarians called for the shady market of the surveillance industry to be examined. In Switzerland, for example, it is standard practice to publish quarterly information on which products have been approved in which country and for which price. This can lead to a public control and debate. In their decision, the EU member states have now rejected any new transparency provision.

Just how important Europe-wide statistics would be, became clear in June, when the German government for the first time published figures after years of blockade. Result: In recent years, the German government has approved the export of surveillance technology worth more than 26 million euros. Among the target countries were countries such as Saudi Arabia, Egypt and Qatar, where human rights violations regularly occur.

Negotiations start in September

According to an internal e-mail from the Finnish Council Presidency, an informal meeting between the EU Member States, the Parliament and the Commission is to take place on the 10th or 11th of September. Official trilogue negotiations could then start on the 19th of September.

It is uncertain when an agreement could be reached. Optimists are expecting a deal by the summer break of 2020. Others fear years of negotiations, which could end in a compromise without any meaningful changes.

And with every additional day passing, on which the Europeans do not agree, the loopholes in export controls remain in place – and European surveillance equipment continues to be traded internationally.