Do sweeping Europol data mandates place EU data freedoms at risk?

The European Parliament resolution to give law enforcement body Europol sweeping data, surveillance powers has raised concerns of lack of oversight in misusing innovation.
15 November 2021

A police agent at the Europol headquarters in The Hague. (Photo by Jan HENNOP / AFP)

Last month, the European Parliament voted favorably on a resolution to make it easier for continental crime agency Europol to exchange data with private firms, and to cooperate on policing innovations powered by artificial intelligence (AI).

The proposed mandate was passed with a large majority of 538 votes to 151 and will allow Europol to process data from any private entity, including the ‘Big Tech’ giants, along with any third-party countries that agree to submit their data for processing.

The proposal was tabled by the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) to broaden the scope of Europol powers when it comes to three critical areas concerning data sovereignty and management. Besides cooperating with private enterprises, Europol will be empowered to process personal data that can be used in criminal proceedings.

Lastly, alongside becoming a processor for exorbitantly large volumes of data, Europol will also be using its newly-expanded powers to identify needs and themes for future EU research projects, particularly in the AI-led fields where algorithms and machine learning tools can be trained to learn and improve for use by law enforcement.

But critics of the latest proposal say that the expansive data abilities outlined represent a far-ranging reach for police and authorities to develop AI systems that can impede personal data privacy freedoms. In early October, the European Parliament had approved a different report from the same LIBE committee that allowed for the use of AI by European police, while limiting use of the tech in certain aspects.

This included tapping AI to “predict” criminal behavior in people, as well as a sweeping ban on biometric surveillance applications in general. The LIBE report even confirmed an oft-repeated fact, which is that until today, a lot of AI-enabled ID methods have been found to “disproportionately misidentify and misclassify” individuals of different ethnic groups, genders, and age groups.

This bias that has been repeatedly displayed by advanced AIs has brought about calls for outright bans on applying AI-based technologies in matters of regulation and judicial decision-making. Not only AI, but controversy has arisen over the use of biometric mass surveillance in public spaces.

But the latest vote appears to have done away with any partial reckoning of these controversial terms. Liberal MEPs have noted that broadly enforcing sweeping data and tech-driven surveillance mandates would appear to go against the EU’s commitment to basic human rights aims.

Some such as non-governmental organization Fair Trials have called for “accountability and meaningful oversight” of all law enforcement agencies, with Fair Trials legal and policy director Laure Baudrihaye-Gérard pointing out to that Europol has been given specific exemptions for several legislations surrounding AI and will therefore not be subject to any stringent safeguards against abuses.

This includes the Artificial Intelligence Act (AIA) that is still before the European Parliament, and has already been criticized by civil rights experts for opening the door to what is considered high-risk use cases — with an emphasis on technical workflows and risk mitigation, rather than upholding human rights and data privacy expectations.

Baudrihaye-Gérard points out that Europol is specifically excluded from the AIA by name, providing the security and law enforcement agency with little to no expectation of oversight when it comes to implementing AI and biometric surveillance in its policing.

“Considering today’s vote, we are going down a path in which Europol is allowed to operate with little accountability or oversight,” she said. “No one is asking questions. No one is holding the agency to account. It is deeply worrying for fundamental rights, including the right to a fair trial and the presumption of innocence.”

Defenders of the bill, however, claim that reforming Europol’s mandate has long been on the European Parliament’s agenda. Furthermore, detractors believe that as the criminal element becomes increasingly digitally savvy, the capabilities of Europol also need to modernize to keep up with the evolving security threats.