Poland’s New Surveillance Law Targets Personal Data of Environmental Advocates, Threatening U.N. Climate Talks

A new Polish law with sweeping surveillance measures threatens free speech and the success of an important climate conference scheduled to take place in Katowice, Poland, later this year.

The conference, COP24, is billed as “Paris 2.0” — a crucial follow-up the 2015 Paris Climate Change Conference, where the Paris Climate Agreement was negotiated. Around 40,000 people from all over the world are expected flock to the industrial city in December, where participating countries will decide on the rulebook for implementing the historic climate accord.

In advance of the conference, a growing number of international NGOs and United Nations agencies have raised concerns about a law passed by Poland’s parliament — a bill “on specific solutions related to the organization of sessions of the Conference of the Parties to the United Nations Framework Convention on Climate Change in the Republic of Poland.” While the vast majority of the law does little more than establish rules on governing how to host and finance the conference, one statute allows Polish authorities to “collect, obtain, gather, verify, process and use information, including personal data about persons posing a threat to public safety and order, including outside the borders of the Republic of Poland” if there is a “justified assumption” they will be staying in Poland. 

Elsewhere, the law empowers Polish authorities to solicit other countries for information on COP24 attendees coming from abroad, including any police records and intelligence gathered by state surveillance. This information can be collected “without the knowledge or consent” of the people it’s collected from, and stored through March 2019. The legislation would ban spontaneous protests within Katowice city limits, permitting only demonstrations approved by the city in advance.

Bartosz Kwiatkowski, director of Frank Bold Foundation, a Polish civil liberties group, calls Poland’s COP24 measures “completely unconstitutional.” But not unusual.

“It’s not really new,” Kwiatkowski says of the COP24 security measures. “Similar regulations were introduced before. From my perspective, there’s no terrorist threat or security threat to justify introducing such severe regulations. It’s a chance to collect data on NGOs.” Although the law itself doesn’t specify exactly what types of information will be collected, Kwiatkowski suspects, based on previous and existing rules, that authorities will collect metadata on COP attendees — logs of who made phone calls, text messages, and emails, for instance.

The new law comes in the context of a conservative political shift throughout Eastern Europe. The right-wing Fidesz party now ruling Hungary recently won a massive victory following record voter turnout, and in a move believed to be an intimidation tactic, a Hungarian magazine with close ties to the regime recently published a list of 200 journalists, academics, opposition politicians, and NGO representatives it claims are part of a plot funded by Hungarian-born billionaire George Soros — the target of a number of anti-Semitic conspiracy theories worldwide. On June 20, the parliament passed a suite of “Stop Soros” laws criminalizing the provision of aid to undocumented immigrants, leveraging a punitive 25 percent tax on non-profits engaged in that type of aid work. The anti-Soros measures also restrict NGO workers’ freedom to cross Hungarian borders.

Supporters of the Fidesz party attend a campaign closing rally on April 6, 2018 in Szekesfehervar, Hungary.

Even before the current right-wing party took power, Poland had invasive data protection laws requiring telecommunications firms to hand over metadata when police requested it. The Polish government pushed regulations similar to its COP24 bill in advance of 2016’s NATO summit and before a papal visit that year, again invoking the threat of terrorism as justification. The 2016 law granted state security services the right to conduct surveillance on foreign citizens for up to 3 months without a court order. It also extended the amount of time that suspects could be held without being charged from 48 hours to 14 days, though authorities required a court order to hold suspects for that long.

“Hosting a U.N. conference is not supposed to be used as an opportunity to strengthen police powers in a manner that curtails civil liberties,” says Sébastien Duyck, senior attorney in the Climate & Energy Program of the Center for International Environmental Law. CIEL and several other international NGOs have expressed concern that the bill violates the Aarhus Convention, which ensures that the general public can access information about, and participate in, decision-making around environmental issues. “The fact that the COP is being used as an argument to strengthen the restrictions on how you can protest in Poland is particularly damaging from the point of view of human rights.”

Duyck worries that hyper-focusing on COP-related security and governance concerns could distract from the actual substance of the negotiations, which have existential implications for life on earth. As he points out, COP24 will be “the most important COP” since Paris. Parties to the Paris Agreement will be finalizing how the landmark deal will be actualized and taking stock of preliminary efforts to cap warming. Civil society groups fear that limitations on the protests that typically surround these talks could also limit negotiators’ ambitions: If national delegations feel less heat from environmental activists, they may be less likely to compromise.  

Some international groups planning to attend COP24 see the bill not just as a threat to the productivity of the conference, but as part of a broader, anti-democratic trend of governments targeting environmental advocates. Opponents on that front include the Cordillera Women’s Education Action Research Center in the Philippines — a nation of islands to which climate change and rising sea levels present a pressing danger. Alma Sinumlag, research and publications coordinator for CWEARC, joined 81 other Global South-based civil society groups in denouncing the Polish law, arguing that it sets a “dangerous precedent that undermines the basic human rights and fundamental freedoms” enshrined in the European Convention on Human Rights.

“Here in the Philippines, the attacks against environment defenders have been escalating,” she told The Intercept via email. “State security forces has [sic] been surveilling activists, harassing them through text messages, discrediting their work through character assassination, filing trumped up cases, carrying out illegal arrests and detention, declaring environment defenders as terrorists, and committing out extra judicial killings.”

A report from advocacy group Global Witness found that the Philippines is the third most dangerous country in the world for environmental activists. In 2016 alone, there were at least 28 environmental defenders killed, largely by paramilitary groups hired by mining companies to suppress opposition to the country’s newly booming coal sector. Around the world last year, at least 197 environmental defenders were killed at a rate of roughly four per week. “Activism is becoming a dreadful word in this time when people fear for their lives,” Sinumlag wrote.

At the urging of civil society groups, various U.N. agencies have sent letters raising these issues to Poland’s Ministry of Environment, which oversees COP24, and the Bureau of the U.N. Framework Conventions on Climate Change, which presides over COPs generally. Five U.N. special rapporteurs also sent a joint letter expressing their concerns about the law to the Polish government in late April, stating that “implementation of the law may lead to human rights violations that may be considered as acts of reprisals against individuals for their cooperation with the United Nations.”

Polish authorities insist that the measures are standard for large public events and global summits more generally. “The primary responsibility of the country hosting the COP24 Summit is to ensure the safety of its participants,” a representative from Environment Minister Henryk Kowalczyk’s office wrote in an extended statement to The Intercept. “Due to the importance and nature of the meeting, as well as the specific terrorist threat associated with it, it is a major challenge for the services dealing with protecting the security of the state and public order, which the Polish Police is ready to face.”

Indeed, COP24 won’t be the first climate talks to place under heightened security measures. The talks which generated the Paris Agreement, COP21, took place just days after massacres at a Parisian nightclub and restaurant killed 130 people. France was under a state of emergency as the conference began. Demonstrations throughout were suppressed, and campaigners involved in planning actions around COP21 had their homes raided by police and were placed under house arrest. The difference with the COP24 legislation, Duyck told The Intercept, is that the law “targets specific individual liberties with regard to the COP,” so the talks themselves are being used as an excuse to curtail freedom of expression.

Kowalczyk’s office defended the law as being similar to the powers Polish police already have over people suspected of crimes. Needless to say, such a stance assumes that civil society group members coming to participate in climate talks should be treated as potential security threats, even terrorists.

Concerns about the surveillance provisions in the new legislation align with broader reservations about Poland — a longtime foe of stringent climate rules — hosting the talks at all. When the location of COP24 was announced, environmental campaigners criticized the government’s choice to hold the conference in Katowice, smack in the heart of Polish coal country. The city itself is home to the EU’s largest coal company, Polska Grupa Górnicza, and critics worry that the placement is intended to have a dampening effect on the negotiations. There’s precedent to think this might be the case: A corporate watchdog group described COP19, held in 2013 in the Polish capital of Warsaw, as the “most corporate climate talks we have ever experienced.” In what was perceived as an indiscreet political message, the Polish government sponsored the International Coal and Climate Summit at the same time as the COP19 climate conference.

The Ministry of the Environment has cited the Warsaw talks as evidence that it can be trusted to ensure COP24 is open to public participation, noting that it invited business representatives and regional and municipal government officials to participate in 2013. As Duyck points out, though, “Neither of these two groups would be considered as part of the ‘public’ – the participation of which is required under the Aarhus Convention.” That business interests will have a front-row seat to the talks doesn’t exactly allay campaigners’ concerns that civil society could be shut out.

Kowalczyk attempted to reassure the UNFCCC that it “will ask the Mayor of Katowice to advise what procedures could be put in place to permit public demonstrations within the city during COP 24.” UNFCCC Executive Secretary Patricia Espinosa similarly assured civil society groups that the “process of requesting peaceful demonstrations within the official U.N. zones remain unchanged.”

But Duyck says the Polish government’s response has done “little to address the substantive concerns and … demonstrates a lack of understanding regarding the issues with the law.”

The Polish government’s creep toward authoritarianism has been recognized by the EU. For the first time in history, the European parliament accused an EU member nation of violating the rule of law via a provision known as Article 7 last December. The move came after the Polish parliament implemented new rules allowing judges to be sacked over political disagreements, throwing the courts’ independence into question. Just today, the EU formally launched legal proceedings against the Polish government arguing that a new law that would force 27 of the country’s 72 Supreme Court judges into early retirement violates Article 19 of the Treaty of the European Union.  

All this makes Kwiatkowski skeptical that the COP24 measures will be reversed. There have been massive demonstrations against various right-wing policies, he says, but “people are getting tired.” The government, he explains, has consistently pushed rollbacks on civil liberties, and “is quite successful in introducing them” and getting them passed into law he says. Ordinarily, the Constitutional Tribunal — part of the Polish judicial branch — would hear objections to the rule, but Kwiatkowski says, “It is so politicized that there is no chance.”

Kwiatkowski doesn’t think the new law should dissuade anyone from attending COP24, but he urges those who are coming to take precautions, like encrypting emails and text messages.

“All of us have some hope that they will stop somewhere, all of us, and that the situation in the polls will change after they introduce these regulations against citizens,” he tells me of the situation in Poland. “Unfortunately nothing like this is happening.”

Top photo: Young environmentalists from international organizations protest in front of the Polish Ministry of Economy in Warsaw, where the Coal and Climate Summit was taking place on November 18, 2013.