Second order secrecy and Europe's legality mosaics

Abstract

In today's information society the citizen is ever more visible to government and to private companies while paradoxically government itself becomes ever more secret. This asymmetry is not caused by secrecy implying deliberate or intentional concealment of information. Rather, it results from systems of secrets held by remote or non-visible public and private actors, having been put together in an invisible manner. Second order secrecy is enhanced in the EU by the composite character of EU administration. In the EU it is the courts and not the legislature or the administration that are playing an active role in addressing bits of the transparency paradox for the citizen from the perspective of legality and the rule of law. Three different aspects of EU governance are explored from the legal perspective: terrorist blacklists, interoperable security administration and mandatory data retention and transfer.