It may seem to be a paradox that a law concerning protection of people’s secrets should be legislated in the open, but in fact, the paradox is the other way around.

 Secret trilogue negotiations between the European Parliament and the Council of Ministers are being proposed as a way to get around the impasse of 3000+ amendments on the Data Protection Regulation. It has been mooted that the trilogues could commence prior to the Parliament’s  Civil Liberties (LIBE) committee vote in October. But would such a move be ethical? And more importantly, what are the ethics of legislating on people’s privacy rights?

   The Data Protection Regulation is currently in its first reading in the European Parliament. It deals with our fundamental  rights to privacy, and addresses sensitive issues such as behavioural advertising and profiling,  and indeed government snooping  - witness the row over PRISM.

 We would normally expect such a law – that calls snoopers to account -  to be debated openly. We want to know what the legislators are deciding and how those decisions are being taken.

 That’s why it is very curious that the responsible committee may be planning  to take a short cut route to getting it adopted – a short cut   that consists of secret back-room negotiations.

 After the European Parliament’s  Civil Liberties (LIBE) committee vote in October, the proposed new law would usually go to a plenary session of the full Parliament. The Parliament’s position would then be sent to the Council of Ministers, and depending on whether or not the two were in agreement, it would either be adopted or there would be a second reading. That is the process – technically known as ‘co-decision’.

 But  it is now  understood among the lobbying community in Brussels that a ‘trilogue’ negotiation may be applied. This is where the Parliament sits down with the Commission and the Council and thrashes out a version of the law that all three can agree on.

 Trilogues are an option in the legislative process, and they may have a place for laws that are not controversial. But these trilogues are held in secret, behind closed doors, and the only people allowed in are  the rapporteur and his shadows, the Commissioner, the Presidency, and selected advisers from each institution.  The trilogue discussions are not made public.

 Under the rules that govern the European Parliament process, trilogues  cannot start before the responsible committee has given a mandate. That’s what’s a little bit odd here. The mandate can only be given when the committee votes in October.

 But the Brussels rumour mill is suggesting that there could be a move to begin trilogues on the Data Protection Regulation  before October, without waiting for the committee mandate. One reason could be timing -  getting  this unwieldy law through the Parliament before the elections is a bit like trying to get an elephant through a doorway. 

 Should that happen, it would be  a breach of Parliamentary process, and especially egregious given  that this law deals with fundamental rights.

 In any event, the rapporteur does not have to agree to trilogues. It is an option.

 Even if the mandate is presented in October, it arguable that trilogues are not only unethical for this particular piece of legislation, but also that it is unnecessary for the Parliament to agree to them at this stage.

 The Article 42 scandal – dropping of an article by the Commission that would have prevented unlawful access by foreign governments and would have been a legal weapon against  PRISM - puts the European Parliament in a strong  position vis- a-vis the Council of Ministers.  And the scandal has raised the bar on transparency for the processing of the Data Protection Regulation.

 What is very transparent, is that pushing for secret backroom negotiations with the Council could well  be a loser on a high profile piece of legislation in a  Parliament about to hit an election year.

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 For more information about the co-decision process in the European Parliament and trilogues, please see my book, The Copyright Enforcement Enigma Chapters 9-12.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013, Cloak of secrecy hangs over EU privacy reform , in iptegrity.com, 1 July  2013. Commercial users - please contact me.

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