Exceptional laws for an exceptional time

In early December 2018 the United Nations Climate Change Conference (COP24) will take place in Katowice, Poland. The act to regulate the organisation of the event restricts civil liberties to an extent that has already become familiar to Polish citizens.

Between the 4th and the 13th of December the eyes of all those who care about climate change will be on Katowice. This is where World leaders will be discussing the future of the Paris Agreement and the Kyoto Protocol on CO2 emissions. The problem of global warming has been provoking some heated discussions for a few years now, as well as, due to the unsatisfactory results of the fight against climate change, no less heated protests.

The preoccupation with the security of participants of such an event hardly comes as a surprise if one remembers clashes between protesters and police in Hamburg during the G20 summit in 2017. Polish authorities decided to address this issue by enacting a law just for the occasion. The law introduces two solutions that inspire our concern: it provides the police with some extra powers, while at the same time limits the freedom of assembly.

The almighty police?

Under the new law the police is allowed to process the personal data of registered participants of the summit, people engaged in its preparation (e.g. volunteers), as well as the data of people who pose a threat to the security and the public order during the conference. This new right includes the power to collect data from, amongst others, public registers, employers, and foreign police forces. The data collected in this way can be processed for a period necessary to realise the police’s interests, such as investigation, but no longer than 31^st March 2019.

This law only marginally extends the powers of the Polish police. It has had the authority to collect personal data of suspected individuals, unknown or wanted persons, and of foreigners whose identity is doubtful for years now.

Will participants or potential protesters be subjected to surveillance by Polish services? Possibly. It is not, however, only the new law to be blamed. The reason for this is the systemic lack of control over the police and other Polish intelligence services.

Poland hasn’t yet implemented the Law Enforcement Directive (directive 2016/680) which is a part of the EU data protection reform. As a consequence, the oversight of how data is processed for security reasons (by intelligence services in particular) is only illusionary. Moreover, under the current law data subjects do not have the right to know whether they have been the subjects of the services’ interest. At the same time the services gain an ever easier access to data stored in databases hosted by both public administration institutions and private companies.

The problems with the effective control over data are embodied by how telecom or Internet data may be accessed. There is no real oversight of data collection as courts are only informed about a plain number of data collected by a specific service every 6 months. This issue has been highlighted by both the Polish Constitutional Tribunal and the Venice Commission.

Objections limited

The second controversy to the new law consists on banning spontaneous assemblies “from November 26^th, 0:00, to December 16^th, 23:59, in the city of Katowice”. A spontaneous assembly is a manifestation which takes place due to a sudden event within the public sphere that could not have been predicted. A key feature of such an assembly is that it would be pointless from the point of view of the public discourse to hold it on another date. It does not require any kind of notification.

Interestingly enough, the new law does not ban manifestations around the venue of the conference notified beforehand. This means that the new regulations will affect only those who want to protest spontaneously against issues unconnected with the summit. The ban will be in force in the entire city (the outskirts of Katowice included) for more than two weeks.

The law limits the fundamental freedom of assembly. Security matters could possibly justify some restrictions on spontaneous assemblies, but only within the area adjoining the conference location. This is not the case: the ban covers the entire city of 300 000 habitants and spreads out over an area of 165 square kilometers and is therefore far too rigorous. The regulation will do nothing but make habitants’ life harder. If rioters ever show up in Katowice, they will either join legal assemblies or simply ignore the ban.

It is not in the citizens’ interest to clean their devastated city as it was the case for Hamburg habitants after the G20 summit. It does not, however, mean that we should follow the French example. In late 2015, just after the Paris terrorist attacks, in order to prevent riots during COP21, provisions related to the state of emergency have been used by public authorities to put eco-activists under house arrest. Poland is somewhere in between these two examples. Still, the exceptional COP24 law is flawed by the typical vices of Polish lawmakers: it is yet another disproportionate and limitation to the fundamental rights and freedoms which eludes any control. The efficiency and necessity of such a limitation is more than doubtful.

Wojciech Klicki, Weronika Adamska