In 2020, the European Commission proposed a package of anti-terrorism measures, including a proposal to amend the European Union’s counter-terrorism regulation titled “A Counter-Terrorism Agenda for the EU: Anticipate, Prevent, Protect, Respond.” The proposed regulation is extensive and focuses in part on how Europol engages with private parties and collects and processes personal data. 

The United Nations Special Rapporteur on the Protection and Promotion of Human Rights while Countering Terrorism, Professor Fionnuala Ní Aoláin, has a specific mandate to examine the way in which counter-terrorism measures since the September 11, 2001 attacks may distort the rule of law, governance and human rights practices, at both regional and national levels, and provide a response to each proposal. The EU is an international leader in both counter-terrorism and human rights and, with 27 states, any new legislation has far-reaching consequences, often setting international precedent. Therefore, careful examination and analysis of the proposed measures in the context of human rights was necessary to support the Special Rapporteur in her response to the EU.

Human rights advocacy group The Advocates for Human Rights asked White & Case to help inform the Special Rapporteur’s response to the EU by preparing a comprehensive memo on general human rights concerns identified in the proposed legislation. 

For example, the proposed legislation lays out the ways in which biometric data can be collected, stored and used, as well as the use of artificial intelligence. Our analysis therefore touched on multiple human rights issues including the right to privacy, freedom of movement, right to association and the collection and retention of personal data. 

Professor Ní Aoláin explained, “The existence of terrorism or violence in any society is complex, and poor counter-terrorism law can be counter-productive. It is in the interest of states to legislate in ways that do not exacerbate the conditions that produce violence, such as by stigmatizing or targeting certain groups. States also have a legal obligation to meet the requirements of international human rights treaties to which they are signatories.” 

Madrid partner Yoko Takagi led a diverse legal team of 11 from offices in Europe. “Ultimately, this project is about believing in and understanding the importance of the rule of law,” says Yoko. “We reviewed the new counter-terrorism proposals presented by the European Commission and provided comments raising human rights concerns on the basis that security and human rights are not competing aspects that may mutually exclude each other.” 

The formal response provided to the EU by the Special Rapporteur in October 2021 was based on and drew extensively from the legal memo provided by the White & Case team. Professor Ní Aoláin’s response highlighted the ways in which the Agenda could impact human rights including freedom of association, freedom of expression and opinion, and privacy rights, as well as how it might impinge upon the rights of minorities through the use of biased technology. In particular, the response raised concerns about internet content monitoring, the use of AI and the mass collection and sharing of data. 

The EU is set to issue a formal response, which will be followed by ongoing engagement and dialogue. “We all have the same objectives—to ensure that states can manage their genuine security and terrorism risks but within the context of a free society that is compliant with international human rights,” concluded Professor Ní Aoláin. 

Photo by Jason Lee © REUTERS
A phone using biometric technology for ID fingerprint recognition.