Organized by Access Now with the support of the Drug Policy Alliance, European Digital Rights, the International Drug Policy Consortium, the Justice Collective, Release and Unjust UK

Mitali Nagrecha, Justice Collective: We need to understand how the police and punishment systems operate today. We started taking a look at the proposal for the cannabis legal regulation in Germany and found that if you look at it from the perspective of the most criminalised, it’s not as strong as we’d hope. We need a similar analysis when looking at technology. How does drug surveillance and punishment look like in Germany? In 2022, the police reported over 300,000 cases of drug-related enforcement —a large volume of police contact with drugs as a reason. In 2022, of those cases 61,000 led to a sentence, down from 77,000 the year before. What we know from statistics is that 28% of those cases were for non-German citizens, suggesting over and undercount, not all of them racialised, but undercounting in terms of the disparities of policing and sentencing in Germany. Concluding based on three factors. But first, let’s note that we’re talking about discrimination in relation to migrant groups and racialised people re: drugs, but it’s much larger than this. One way to see it is that racial profiling by German police is very well documented for at least 20 years. The Chronic has collected cases of this for those 20 years. The second way it operates is that the police in many of Germany’s cities, particularly ‘hotspots’ policing measures —police themselves designate areas of high crime or ‘hotspots’. In those areas, they have increased police power, for example, the lack of need to have reasonable suspicion. A few are designated as hotspots because of the assumption of an open-air drug market. So drugs serve as a basis for this. Police dedicate significant resources to policing these spaces. Another source is through court operations. We sit in courts in Berlin, with partners in Cologne, checking who we see and for what kinds of offences. I saw a case of one white Austrian lady sentenced for drugs. The only case I can recall was a white defendant. This criminalised group I refer to doesn’t represent the universe of people who use and supply drugs in Germany. On the user side, Germany has similar prevalence between groups. Yet 20% of cases are against non-German citizens. According to research by a scholar, over 90% of cases of supply happen behind closed doors, mostly by white suppliers. The idea of the dealer in the park is just a small subset. In this context, when looking at cannabis regulation, we concluded it would be insufficient. On the user side, the model in Germany is to have cannabis clubs. We think there will be barriers to access cannabis clubs. Participation in growing cannabis will be required from members. So people will continue to rely on the illegal market, and they will thus continue to be surveilled. On the supply side, very little focus about relief from previously criminalised people. Against some cases in the United States where expungement of criminal records has been an integral part of the conversation. How did we get there? And a note on technology. The reason for this disconnect between drug policy and this perspective on racial profiling and policing —and this was discussed on the call for this panel…we don’t talk enough between movements. When we look at the use of tech in Berlin. Facial recognition, and other surveillance technologies. The Berlin Transport Authority has historically called for facial recognition in the past, for instance. It’s mostly people in the tech space resisting this expansion of police powers. So there’s work to be done.

Chloe Berthélemy, EDRi: My main thesis today is that drug control and the fight against trafficking at the EU level is driving the security agenda of the EU. The way drugs are demonised makes it a good justification for EU policies to expand surveillance powers, competences at EU level, and boost current existing police cooperation mechanisms between member states. The punitive approach is dominating at EU level. There’s little alternative vision. This punitive approach pushes for police practices that are privacy invasive and threatening. This is where digital rights activists are concerned because if we see more and more uptake of surveillance technologies in Europe, very often it’s the criminalisation approach of certain activities, including drugs, driving this policing agenda. In terms of threats to digital rights, implementation of new technologies like predictive policing algorithms, biometric surveillance. The anti-drugs trafficking agenda is justifying hacking operations on comms networks, data sharing mechanisms between law enforcement authorities. The war on drugs, and drug control agenda, is used as a framing to justify more autonomy, budget and resources for entities at the European level, like EUROPOL and EUROJUST. The EU struggles to gain competence and trafficking serves as a way to garner power in this area that is a historically reserved competence. We see the impact of these repressive policies on digital rights of drug users, also the entire population. Once those invasive practices are introduced, they’re introduced for everyone. One example is from EUROPOL. EU enforcement cooperation agency. It is an information and data analysis hub. EUROPOL collects data from sources like member states national authorities, third countries, private companies, interpol,… they analyse them and produce ‘criminal intelligence’ and dispatch information to member states with partnerships with EUROPOL. Provides technological tools of analysis and information exchange on criminal investigation. Teams of specialists that are meant to find connections between databases to try to find out crime trends across Europe, etc. It’s interesting to us at EDRi because EUROPOL is mainly an illustration of a data-driven police model. Data at the centre of police strategy. Relies on huge amounts of data collected, shared, processed, and analyses, and automated (algorithms). How does it tie with trafficking? EUROPOL is about anti-drug trafficking. It was set up originally in 1993 and it was called EUROPOL Drugs Unit. EUROPOL came in 1999. Drug trafficking was the very reason why police cooperation at the EU level started. Anti-drug trafficking operations become a way to request more power and resources. It does a lot of public relations work —with the screenshots I wanted to put on my presentation you were going to see who was getting arrested with very ‘catchy’ titles —Number of suspects arrested. Sell services via tour in different countries. Drug trafficking justified mass hacking operations, targeting entire comms networks deemed criminal services —like ENCROCHAT and other two. Those two service providers offered an encrypted comms network. It’s not a normal phone. You have to go to a specific reseller and pay an amount for the phone and a subscription. You don’t have access to the regular networks that Google and Apple would use. They were marketed as secure because encrypted because no camera, no microphone, limited functionalities. They were hacked by police with huge impacts on many fundamental rights and particular privacy rates. On privacy, all data even if not related to criminal activity was accessed. Including sensitive data. It’s mass surveillance too. The presumption of innocence is undermined because there was no individualised suspicion. All ENCROCHAT users being criminals. Studies suggest that there were many ‘regular’ users. Undermines the right to a fair trial because it’s impossible to check the reliability of the evidence, hard to access exculpatory evidence for defendants. Pretrial detention also happened leading many people in prison regardless of the gravity of their actions. Even resellers were put in prison instead of accessing a fair trial. Those operations show how anti-drug trafficking links with the criminalisation of encryption, which is dear to us. Encryption was considered an element itself of suspicion. As soon as you had the phone, the judge agreed to judge and prosecute and sentence. So it built a narrative that encryption is a de facto criminality feature whereas a lot of people use encryption, it’s common.

Caterina Rodelli, Access Now: How does this link with the EU work on migrants? It’s key to understand how we got here where there’s a normalised legalised between the notion of migration and criminality. That’s at the heart of migration police. Building of abolitionist reflections, it’s important to understand this to understand how the mobility of capital and resources become intertwined with surveillance technologies. From the 1990s, we see a new role for surveillance technologies into the way migration and mobility is managed. It’s not a random period of history, we have a transition from the cold work. A huge defence industry needs to be reinvented, and becomes the security industry. Abundance of materials. The US leading the war on terror. Open markets to invest in surveillance technology. The migration area technology is a perfect area to invest in these systems. Political value to present technological solutions as neutral: ‘Protecting borders’. Dehumanising people affected and strengthening the normalisation of the criminalisation of migration. In which ways are technologies used in migration policy practices? Many ways. An absurd amount of ways. I focus on one type which is the use of risk assessments and profiling. How do you automate this idea that some people represent a risk to security, and the way you frame risk and security. How? Collect vast amounts of data. Build risk indicators and screening rules to compare a profile against those risk indicators. For instance, the Passengers Name Directive allows for the collection of a great number of data from a person travelling by air. The EU Commission proposes this idea that people who fly may be people likely to commit serious crimes and being terrorists…without evidence. Thanks to this directive, when you board a plane, data collected from the country of origin, flight route, if you take a meal other information about your life. All of this is 1) compared against risk indicators —your country of origin may be flagged as high risk of low risk depending on what has been associated with a country. If you come from Morocco, you are flagged as having a higher risk than if you come from the Netherlands because of specific risk indicators. Then you’re checked against many databases. This Directive allows for the normalization of the process of automating the risk assessment and this idea that there’s a strong link between the fact you’re traveling by air and the possibility that you’re a potential criminal. One example of the way people’s data is compared to risk indicators. The future looks more complex and complicated. At the EU Level, we have a variety of pieces of legislation looking at legalising more forms of digital surveillance against non-European citizens and people in the EU. An example is the AI Act —which allows for the use of a range of surveillance technologies in migration: from risk assessments to emotion recognition systems. Also, the [Asylum] policy that contains measures that would allow for surveillance technologies at the border. Failure of the punitive approach and law enforcement in general which constantly puts more measures proposed as protection but that actually doesn’t curtail harm or violence.

Katrina Ffrench, UNJUST: My focus will be the Gangs Matrix judicial review in the UK. The name is Gangs but it’s important to contextualise this as part of the criminalisation of racialised identities. And also, very often the war on drugs is behind it. A decade ago, a man was killed by the police. Mark Duggan. English riots or insurrection. David Cameron, prime minister then, and Boris Johnson, mayor of London then, blamed ‘gangs’. They called for a war on gangs and that’s where the Gangs Matrix happened. It’s a spreadsheet. It’s an excel spreadsheet rating people from green, yellow, and red. You didn’t need to be convicted for a serious violence offence. Some people had been victims themselves and never engaged in serious violence. More than 85% were Black. The Metropolitan police was basically suggesting drug dealers were basically Black. Excel spreadsheet but also scanning your social media —certain hand moves and behaviours were understood as gang-related. If your brother or sister were involved, you were put in the gang. If you socialised with people considered gang members, they’d put you there too. There’s no targeting. It was a wide net for London. 4,000 people on it at the height. Team of organisations: Amnesty report in 2018, Stopwatch did a report also. And then it stayed there. But problematic because no change to the database. In 2022, Liberty wanted to do a judicial review. A young man suspected they were there. If you were there, they took your college place. Some kids would be removed from their houses. Some people lost their driver’s licence —a lot of them had licences to do delivery gigs. Requested urine samples sometimes even without being prosecuted. Your world became smaller. When you speak about gangs, it was really about drugs and drug supply. The issue is that the database was heavily racialised. All kinds of people take drugs. So the focus on Black men was clearly racist and discriminatory. The review was about scrapping the Gangs Matrix. And we wanted for them to acknowledge it was a racist endeavour. We thank the person who supported. The Met police settled after 10 years. They admitted that they had breached article 8 (family life and correspondence —because of they were doing assumptions). No acknowledgment that they’d been racist. Tension because Awate didn’t wanna settle. Wanted them to acknowledge they were racist. But we knew this wasn’t gonna happen. They said the review was theirs? Media perception of young black men in hoods is too strong. The white English men would never side with them. We managed to remove all the ‘greens’. The Database collective wasn’t erased. The Matrix is dismantled. My worry is that they’ll copy that into another system. We’re about to embark on a roadshow in London finding out people in the matrix or heavily surveilled. What does justice look like to you? Access request and settlement? For some people, who were denied college…maybe that’s what they want as redress. So we want to hear what people want in terms of justice. We need to listen to what impacted people want. It’s not just the Gangs Matrix. Chris Kaba was shot in the head by police because of the number plate on predictive policing.