In May 2023, the EU Parliament in an investigative report “strongly condemned the use of spying software by governments of Member States to monitor, blackmail, intimidate and discredit critics and civil society.” After the scandals with the state Trojans Pegasus, Predator, FinFisher & Co. in Hungary, Poland and Spain, lawmakers called for changes and clarification of requirements. EU Justice Commissioner Didier Reynders promised to present a legislative initiative. Nevertheless, nothing happened for more than a year. Now the Commission wants to respond to the Parliament’s demands at least with dialogue.
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The Brussels government institute plans to encourage member states not to abuse national security as a blank check for the use of spyware. Politico reports In reference to a draft response to a parliamentary report, which should be published urgently after a long delay, governments that want to use surveillance software such as NSO Group’s Pegasus “cannot exercise their responsibilities in a way that undermines the effectiveness of EU law” on data protection and privacy.
Spyware Prevention
The Commission does not want to ban spying software altogether. According to Politico, the document states that “under appropriate conditions and safeguards,” their use by national security or law enforcement agencies can serve to protect important objectives of general public interest in a democratic society. However, the improper use of such programs is capable of “undermining or even destroying the proper functioning of democratic processes” – “under the guise of protecting them”. Therefore, strict controls are necessary. The mere fact that national security may be at risk does not overrule EU law. The often used argument does not allow unilateral action by member states.
According to the report, the Commission brings forward “minimum guarantees and conditions” that should be applied “regardless of the purpose of surveillance”. For example, approval must be obtained beforehand from a court or independent body. Journalists must not be the target of spyware. EU states defended themselves against such requirements in the dispute over the Media Freedom Act, which therefore only contains a compromise formula.
According to the draft, there should also be a notification requirement as soon as the cited threat is over. It is said that the use of spy software should be restricted to the fight against serious crimes such as child sexual abuse, murder, money laundering, drug trafficking and corruption. In this country, the police are also allowed to use state Trojans to combat everyday crime. US President Joe Biden issued an order to prohibit the operational use of Pegasus & Co by a number of US officials in 2023. Apparently the commission does not want to go that far.
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