40 Futures is a speculative fiction series about the criminal justice system.
Bio-data & stolen art push EU-US relations to new lows
Strasbourg – In another blow to EU-US cooperation, the world’s most allegedly infamous black market antiquities dealer will not be extradited to stand trial in the United States.
Sofia Teixeira, a Portuguese national, was charged in the US with the distribution, purchase, and sale of dozens of stolen Iron Age artifacts from Africa, Asia, and Europe. However, in a first-of-its-kind case, her attorneys successfully fought her extradition by arguing that the technology used to collect evidence against Teixeira did not comport with EU privacy law, thus invalidating the request.
“Today’s decision affirms that the EU stands for privacy and human rights of its citizens,” said Tiago Da Luz, one of Teixeira’s attorneys.
In a story pulled out of a spy novel, the FBI found a cache of artifacts allegedly trafficked by Teixeira in the Washington, DC suburb of Reston, Virginia thanks to the use of a mesh router system installed by the home’s owner. The technique allowed investigators to track movement within the space by monitoring how the WiFi signals bounced around the house, according to the charging document. This brought the FBI’s attention to a false wall hiding the stolen antiquities.
By the time charges were filed in US federal court, Teixeira had already flown to Lisbon, where she resides.
“The search we conducted of Ms. Teixeira was done so with a legal warrant and within the bounds of the US Constitution,” said Marta Dole, the US Attorney for Virginia’s Eastern District, in a written statement. “We will continue to work with our counterparts in Europe to ensure that individual rights are protected and criminals are correctly punished.”
The tension leading to this outcome had been in the making for some time.
“It’s a perfect storm, really,” says Liam McEnnereny, a scholar-in-residence at the Maynooth University School of Law in Ireland. “While the US has failed to pass comprehensive privacy legislation, the EU has continued to codify and affirm privacy protections for criminal defendants. The cleavage was there, this outcome was all but inevitable.”
Two major factors led to the failed extradition. A decade ago, the EU was sued by a Swedish privacy watchdog over its training of Kosovar and Moroccan police. The European Union Agency for Law Enforcement Training (CEPOL) trained local police on how to create fake social media accounts, track devices, and build biometric dossiers at border crossings--all techniques banned or highly regulated in the EU itself. The European Court of Human Rights put an end to the EU exporting these practices in a sweeping opinion.
In response to the scandal, the EU Parliament passed the Biometric Data Protection Regulation (BDPR). The sprawling law requires data and privacy protection assessments for any novel investigatory technique used in a criminal trial of an EU citizen. Not only keeping EU law enforcement practices in check, the assessments essentially act as an import control against privacy-busting searches happening against EU citizens beyond the bloc’s borders.
The case revolved around whether or not the privacy protection assessment of the search technique used to find the stolen works was a valid basis to stop the extradition. The court said that it was.
“The technique used to collect evidence linking Ms. Teixeira to the stolen artifacts runs counter to the BDPR’s protection of physical movement in a private residence,” read the court’s opinion, published Monday. “As previous cases have plainly laid out, EU member states can deny extradition of their citizens if the extradition would cause that citizen physical harm. We extend that principle to protect the rights of defendants, in some cases.”
As the court hinted, this is not the first time it has blocked an extradition to the States. In 1989, an extradition request to the US was at first denied because a guarantee against using the death penalty was not made by the US state where the trial would be held. A similar decision was made in 2012, which stopped a deportation to Jordan because of concerns regarding evidence obtained by torture.
While Teixeira will not face a trial in the US, she still may be charged in a number of EU countries where she allegedly conducted her black market business.
The media attention surrounding the extradition is a return to the public eye for Teixeira. The scion of a prominent Portuguese family that made their money in shipping, she rose to prominence in her late teens and early 20s as an adventurous socialite studying archeology at the University College London. The juxtaposition of her famous friends and archeological digs in remote regions of Asia’s subcontinent made her social media feed a tabloid favorite. However, she left the public eye and social media shortly before graduating from university, which, other outlets have reported, lines up with her alleged transition into antiquities smuggling using her family’s vessels.
Even though the US response was conciliatory to the court’s opinion, experts expect outcomes like this to become more common as the US and the EU move further apart on privacy and criminal rights.
“We’ve been saying it forever, but America is still the Wild West when it comes to digital privacy,” says McEnnereny in Ireland. “This has led to complications, failed re-negotiations, and a general devolution on other data sharing agreements between the two powers.”
With that trajectory in mind, he says, “We shouldn’t expect Teixeira to be an exception. This case will likely become the rule.”
Links from the podcast commentary
Home security and health care using WiFi motion detection. (Embedded Computing Design)
Linksys’ mesh router motion-tracking system can now work with other smart home gadgets. (Verge)
The Court of Justice invalidates Decision 2016/1250 on the adequacy of the
protection provided by the EU-US Data Protection Shield. (Court of Justice)
The war torn web. (Foreign Policy)