European Union governments want to be able to spy on reporters in the name of national security, even as lawmakers urge them to crack down on spyware, writes POLITICO.

“Governments’ deputy ambassadors are set to give their blessing at a Council meeting on Wednesday to a national security exemption in a new media regulation whose original purpose was to safeguard media independence and pluralism. Privacy advocates and journalists’ organizations argue the new clause would give countries a free pass to snoop on reporters.

This first-of-a-kind rulebook for media, proposed by the European Commission in September, touches upon a broad range of areas, including surveillance, media concentration, public broadcasters and online platforms. The original proposal sought to ensure governments could not "detain, sanction, intercept, subject to surveillance or search and seizure" journalists in order to uncover their sources, unless “justified by an overriding requirement in the public interest”.

They shouldn’t deploy spyware on journalists’ devices either, unless — again — it’s for national security purposes, “on a case-by-case basis”, or such surveillance is needed to investigate “serious crimes”, which the Commission listed as terrorism, human or weapons trafficking, exploitation of children, murder or rape, for example. But EU capitals, led by France, want a bigger carve-out.

Hands off!

Last month, in a document first reported by POLITICO, Paris called for an “explicit and unconditional” clause in the text to safeguard member countries’ prerogatives on security and defense and for narrower immunity for journalists under the new EU-wide media rules.

“The particularly exorbitant nature of this immunity raises questions — both in terms of its necessity and its proportionality”, the document reads, while stressing France’s “attachment” to the confidentiality of journalists’ sources and acknowledging “the emotion triggered by the Pegasus [spyware] affair”.

It is “essential to strike a fair balance between the need to protect the confidentiality of journalists" sources and the need to protect citizens and the state against serious threats [...] whoever the perpetrators may be”, France added in the document. Sweden, at the helm of the Council until the end of the month and responsible for steering the negotiations, has accepted France’s wish list.

It pitched an article stating the provisions protecting journalists from interference and surveillance shall be :without prejudice to the member states’ responsibility for safeguarding national security”.

The Commission’s list of “serious crimes” has also been removed from the original text. Spyware can instead be deployed to investigate the crimes referred to in 2002"s Council Framework Decision of the European arrest warrant — broadening the number of offenses allowing such surveillance from 10 to 32. Alternatively, it can be used to investigate crimes punishable by at least five years’ imprisonment.

In the latest compromise text, dated June 16 and obtained by POLITICO, and set to become the Council’s official position ahead of the three-way negotiations with the Commission and Parliament, the wording “spyware” was replaced by “intrusive surveillance software”. The Swedes also outlined that “one delegation” is still pushing for a reference to member countries’ sole responsibility for national security in the first article. The Swedish presidency and the French permanent representation to the EU declined to comment because talks haven’t finished.

Pandora’s box

Unsurprisingly, journalists and privacy advocates are not happy with the Council’s suggested tweaks. “National security is a classic exception. It opens the door to all kinds of abuse”, Julie Majerczak, head of the Brussels bureau of Reporters Without Borders (RSF), told POLITICO, calling it a “Pandora’s box”.

With 59 other civil society organizations as signatories, including RSF, EDRi wrote an open letter to EU deputy ambassadors on Monday, urging them to reconsider their position. The current compromise “is not only weakening safeguards against the deployment of spyware but also strongly incentivizes their use based solely on member states’ discretion”, the signatories said.

Majerczak is calling for strong legal safeguards — failing the withdrawal of the national security clause — like involving judicial authorities, should a government decide to spy on a reporter. Nothing is set in stone. Once the Council has agreed on its mandate, it will have to negotiate with the Parliament — which has yet to reach its position — and the Commission before the new rules can enter into force. In Parliament, the provisions for the surveillance of journalists are under the sole jurisdiction of the civil liberties and justice committee — led by the rapporteur, liberal Romanian lawmaker Ramona Strugariu of Renew Europe.

“Member states who are champions in providing guarantees for the freedom of speech should give a very serious thought to what kind of precedent they are setting and what standards they commit to”, she told POLITICO, pledging “to strengthen the Commission proposal and to have a balanced deal with the Council”. In her draft report, Strugariu suggested that the deployment of spyware should be ordered by a court of law or by a judge — which promises lively discussions between the Parliament and the Council as they hammer out the final text”, - writes POLITICO.