Paying twice for the same meal: “visa-free” travel to the US

It has been a while since I have last written an entry here. Several things make me upset about politics, and it is difficult to break them down into short and readable blog posts. The problem is each time I read about what Europe should do to draw the US' attention back to Europe, I can only shake my head for incomprehension. Europeans don't get it, do they? The questions should not be "what can Europe offer to the US", but "what can the US offer to Europe"? But Europeans never ask that question with the consequence that they hardly get anything in return from the US for concessions they make. Here is just one small example that I would like to address today: visa-free travel.

Let's just assume for a second that the visa-free travel to the United States of America granted to Europeans under the Visa-Waiver-Programme (VWP) and all its related requirements deserves to be qualified as visa-free travel. Let's assume that here, for the sake of argument.

To start with, visa-free travel agreements are usually based on a mere principle of reciprocity. Probably this is how it can be explained why Americans had to grant visa-free travel in the 80s to an increasing number of Europeans when Europe recovered from World War II and asserted itself with new economic power. Otherwise, Europe maybe would have stopped granting Americans the right to visit Europe without a visa. A similar shift in confidence can currently be seen in Russia who just announced to toughen its visa requirements for EU citizens travelling to Russia. By explicitly citing the principle of reciprocity, Russia thus demonstrates that it is not willing anymore to let Europeans get away with requirements that are so much more lenient to fulfill than the corresponding ones that are imposed on Russians wanting to come to Europe. It is a new confidence and awareness on Russia's part that it does not need to dwell in a situation of inferiority where it should be thankful for any visa-facilitation Europe might grant to Russian citizens. 

Another application of the principles of reciprocity relates to countries' visa fee practice. For instance, some countries such as Argentina determine their visa fees based on the amount that their citizens have to pay for visas in other countries. In that sense reciprocity is a benchmark, where respecting it is the cost for visa-free travel or visa-facilitations. And it seems that based on the principle of reciprocity also Americans and Europeans have found a way to grant each other visa-free travel – with only some few exceptions still in place for the citizens of some new EU Member States for whom the European Commission is still working on achieving full visa-reciprocity. Hence, by allowing the visa-free travel of Americans, Europeans have paid the price for their corresponding privilege in the US. 

Yet, the US at some point in time decided to believe they deserve more in order to uphold Europeans' right to visa-free travel to the US. In a trial of strength, they forced European Member States to grant US authorities access to Passenger-Name-Records (PNRs) held by European carriers operating flights to and from the US. The troubled history of blackmailing, threat of retaliation, the bypassing of the European Commission in this matter of Community competence, and the current state in limbo of the to-be-renegotiated EU-US PNR agreement would be too long to address here. What becomes clear though is that even if no explicit link is being made, the question of who can travel under the VWP is strictly considered in relation to the PNR question and recognized by all stakeholders. In that sense one has to read the statement of the Council of the European Union of March 2008 that affirms that: 

"5. The Commission and the relevant working bodies of the Council are requested to urgently examine the different elements of the ongoing implementation of the VWP legislation […] In the meantime, in their contacts with the US on the matter, Member States should be guided by the following elements: 

a. Regarding passenger record data, the recently signed EU-US PNR Agreement should suffice and no additional requirements should be added as compared with that Agreement."

This statement wasn't worth the paper it was written on, since some new EU Member States were lured nevertheless into disregarding it. In order to accelerate their accession to the VWP, these countries decided to conclude bilateral agreements with the US that would provide for the transfer of certain personal sensitive information contained in the PNRs even though their transfer to the US had been blocked by the European Court of Justice and were not covered by the EU-US PNR agreement. 

But the story doesn't end here. The statement cited above continues:

"b. No commitments as to access for the US to EU/EC data bases or information systems."

Maybe EU Member States had better internalized this statement to avert what was to come: At the beginning of October 2010 it became known by the Austrian press that our dearest ally, the honorable United States of America, had blackmailed Austria to either grant US authorities access to Austrian police data bases or to have Austrians' right to travel to the US under the VWP revoked. Austria eventually ceded to the pressure, and it is highly speculated that other EU Member States have done so too. (For reports in English, see here and here.)

When I read this, I couldn't help but to feel ashamed for being a European. Are we just stupid or incompetent? How is it that Europeans constantly fail to make Americans pay for the data they require us to submit? Or do we just value visa-free travel to the US above everything else, so much that we are even willing to let the US blackmail us with it, that we are willing to give up the integrity of our personal data and fundamental rights? Or do we really believe we don't have any other choice? 

Europeans have paid their dues for visa-free travel when they upheld the rights of US citizens to enter Europe without a visa. This is not a given and could be revoked at any time if the US does not honor its end of the bargain. Therefore, if the US wants access to European PNR data and national police databases, we should ask them what they are willing to pay for it. Visa-free travel is nothing "given in return" since Europeans already benefitted from this anyway on a strict basis of reciprocity. It would be more than urgent to finally know how much our data are actually worth to the US before we give them out for free. I'd even go further and would recommend that Europeans have at least a tiny little bit of self-esteem to dare retaliation against the US' blackmail. But, of course, we don't do any of this.

At the end of the day all I can therefore do is congratulate the United States of America for their bargaining talents which are truly amazing: By now you have made Europe paid not twice but thrice for the very same meal! (Or maybe it is just Europe's bargaining "un-talents" that are amazing?) I understand that terrorism must have caused some inflation in the price for visa-free travel, but I wonder nevertheless how the US can remain competitive: With all the other terrorism related security measures that you impose on EU citizens, the meal with inflated prices certainly doesn't taste any better... It actually tastes worse by the day, and personally, if I were in charge, I wouldn't be willing to pay for it: Thanks but no thanks. Let's all get a visa, Americans and Europeans alike, and we get to keep our data. Now we can negotiate!

The tragic story of SWIFT: Hope dies last

What basically everyone interested in these matters had already expected became true: despite the civil liberty concerns that it raises, the European Parliament approved the so-called SWIFT-agreement that would give the United States access to innocent European citizens' banking data in order to track money used for terrorist financing. 
 

To give a brief recap (though I assume that everyone is at least somewhat familiar with the debate): Despite a moving speech by Vice-President Joe Biden to sweet-talk the European Parliament (EP), the EP had voted down the first draft agreement in February 2010 for insufficient data protection standards, thus forcing the European Commission (EC) to go back to the negotiating table with the US. A second draft-agreement was subsequently presented to the EP and the European Public which, as explained in my earlier post, did still not meet one of the most crucial requests that the EP had set as a condition for approving the agreement. Therefore, additional concessions had to be made, until the EP eventually felt comfortable with giving its consent to the SWIFT agreement on July 8^th.

As has been reported to the public, one could not say that the MEPs did not have their reasons for approving the agreement, especially if one considers their legitimate interest in strengthening their negotiation position with regard to the Council and the Commission for future negotiations on foreign affairs issues by positioning itself as a reasonable and mature partner capable of balancing opposing interests in the delicate realm of international relations.

Yet, at a closer look it appears that most of their reasons are good enough for the uninformed public but not for someone who really bothers with the details of it. Hence, before the vote, I wrote three Members of the European Parliament (MEPs) to express my doubts regarding the agreement. The two immediate replies I received, namely from Manfred Weber (Christian-democrat/EPP) and Alexander Alvaro (Liberal/ALDE), both maintained that yet another rejection of the agreement could not be mandated. Unfortunately, they failed to give me an appropriate answer of why this was the case or to seriously dwell on my concerns.

Indeed, ignoring my arguments, the answer I got from them was simply that contrary to the draft rejected in February, European citizens' privacy and data protection rights were now more clearly regulated and that relevant civil liberty concerns had hence been sufficiently addressed to allow for the approval of the SWIFT agreement (whose very need for existence no one seems to question!): Whereas Mr. Weber just made a general statement, Mr. Alvaro was more specific and underlay its position by referring to article 16 (Right to Rectification, Erasure, or Blocking) and 18 (Redress) of the agreement to make his point. I would have hoped for more founded arguments, considering that, anticipating their answers, I had already indicated to them that I would not accept the enumerating of these articles as evidence that appropriate data protection was now accorded to Europeans in the US because, as I read the agreement, these articles have a merely symbolic meaning. (I hoped they would prove me wrong, but so far they haven't).

For those of you who are not very familiar with the agreement and the underlying context: It is true that article 16 and 18, as cited by Mr. Alvaro, generously name data protection rights. The one of special interest here is the one of article 18 as it is the one that should provide for the mechanism that is absolutely necessary for you to be able to enforce the rights accorded to you by article 16 against the US. Article 18 solemnly proclaims: 

"Any person who considers his or her personal data to have been processed in breach of this Agreement is entitled to seek effective administrative and judicial redress in accordance with the laws of the European Union, its Member States, and the United States, respectively."

What is wrong with this is precisely the fact that effective judicial redress (for the rights embedded in article 16) in accordance with the laws of the United States is an empty promise if you hold the wrong citizenship or have the wrong residence. I can only repeat over and over again that without a green card or US citizenship, you only have "the right to request access to federal agency records or information" according to the US' Freedom of Information Act (FOIA). It is true that this right is enforceable by EU citizens in US Courts, and in that sense judicial redress is available. But as a European, in a US court judicial redress is not available to enforce the more meaningful

"right to request the amendment of records that are not accurate, relevant, timely or complete; and [..] the right of individuals to be protected against unwarranted invasion of their privacy resulting from the collection, maintenance, use, and disclosure of personal information[,]"

or to sue the government for violations of these rights because these rights are provided only to people that qualify as "individuals" under the US Privacy Act of 1974, in which "individuals" are defined as those people that either hold US citizenship or a green card. Hence, the rights generously mentioned under article 16 and 18 are empty promises because, even if the US might commit to granting Europeans these rights, no corresponding right to enforce them in a US court is provided under domestic US legislation, and neither article 16 nor 18 change this. Indeed, as article 20 of the agreement states,

"[t]his Agreement shall not create or confer any right or benefit on any person or entity, private or public."

Anyone who knows a little bit about international treaty law knows that this article can't be interpreted but to mean that the EU and the US explicitly exclude the possibility that the SWIFT agreement might be self-executing. That is, the SWIFT agreement does not create rights that are directly actionable by individuals, but only a promise given to the EU by the US that European citizens' data protection rights will be respected. Therefore, whereas the EU can now request the US to respect European citizens' data protection rights lest to revoke the SWIFT agreement, as an individual there is nothing I can do if the US denies me effective judicial redress to enforce my privacy rights enshrined in the agreement, since the US does not owe any obligation directly to me or any other EU citizen. (For some general free background reading on the direct applicability of treaties in domestic US law, see here for instance.)

Moreover, the way the agreement is phrased means that the US' current legal framework is already enough to ensure the automatic compliance of the US with the obligations it owes to the EU. Indeed, the above-cited article 18 continues:

"For this purpose and as regards data transferred to the United States pursuant to this Agreement, the U.S. Treasury Department shall treat all persons equally in the application of its administrative process, regardless of nationality or country of residence. All persons, regardless of nationality or country of residence, shall have available under U.S. law aprocess for seeking judicial redress from an adverse administrative action." [emphasis mine]

The difference in the wording of "its administrative process" and "a process for seeking judicial redress" is crucial. As I see it, it can only be interpreted in the sense that no discrimination is permissible in granting administrative redress to data subjects, but that discrimination in the application of judicial redress is acceptable, as long as Europeans are granted some other type of judicial redress mechanism even if it is not the one granted to US citizens. In that sense, the US legal framework as defined by the FOIA and the Privacy Act does live up to the promise contained in article 18 of the SWIFT agreement, in that domestic US law provides for some judicial redress mechanism for the data protection rights of EU citizens. No article anywhere defines what characteristics such a mechanism should foresee or what rights should be enforceable with it to meet the article 18 requirement: To say it once again, the FOIA might foresee a judicial redress mechanism accessible by EU citizens, but only for the rights granted by that legislation which are absolutely insufficient for enforcing effective privacy and data protection safeguards. The more far-fetching privacy rights that US citizens are granted under the Privacy Act, most importantly the right to sue the US government for an unwarranted invasion of one's privacy, are still not accessible by Europeans.

Admittedly, one might spot a positive sign indicating that the US might consider changing its domestic privacy legislation in what results from a comparison between an earlier June draft of the SWIFT-agreement and the one that was eventually submitted to the EP for approval: whereas the earlier draft specifically stated that "[t]his Agreement is not intended to and shall not derogate from or amend the laws of the United States…", this has now been removed from the agreement which now says that "[e]ach Party shall ensure that the provisions of this Agreement are properly implemented. Maybe this gives some hope that the US might finally be willing to move towards recognizing the human right to privacy also of non-American human beings by extending the scope of its Privacy Act, or that the EU might at least informally require the US to adjust its legal framework. This might also be seen in the fact that the EP, when giving its consent to the conclusion of the agreement, explicitly instructed

""its President to enter into inter-parliamentary dialogue with the Speaker of the United States House of Representatives and the President pro tempore of the United States Senate on the future framework agreement on data protection between the European Union and the United States of America." 

Yet, as MEP Jan Albrecht pointed out, by approving the SWIFT agreement without a general data protection framework agreement having been concluded between Europe and the US, or without requiring changes to US domestic legislation as a necessary prerequisite for the SWIFT agreement's entry into force, the European Parliament has lost much of its leverage it could have had on the US Congress and government to amend the Privacy Act. The hope that the US might nevertheless remove the current discrimination thus seems illusionary, also because it would probably result in the illegality of many of the procedures with which the US is generally treating foreigners (US-VISIT just to mention one example). 

At this point, faced with a European Parliament that did not live up to its expectations of being a guarantor of EU citizens' interests and fundamental rights, all that there remains is to hope that my predictions are wrong and that despite the huge legal costs that this would involve, some European will make the effort to bring a lawsuit all the way up to the European Court of Justice to have the SWIFT agreement declared null and void for breaches of Europeans' fundamental freedoms and EU privacy laws. Hope dies last, so let's lean back and wait. And I will keep you posted on it.

[Comment: I met MEP Weber at a recent privacy event on September 15^th, 2010. I don't think he connected my name to the email, but I approached him to ask if he knew why the US did not want to change the US Privacy Act to encompass every person in its scope independent from nationality or residence. His reply was that the US cannot afford higher protection standards to EU citizens than it does to US citizens, which would happen if the US agreed to grant Europeans European protection standards. (European data protection standards are commonly seen as more demanding than the corresponding US standards.) While from a US perspective this is a justified position, it does not explain however why the US refuses to apply the standards it already grants to US citizens also to Europeans, and why the EP did not insist on this issue. And this was all I was asking for. Even though demanding the US to adopt EU data protection standards for the handling of EU data should be mandatory, I would settle for less: What an easy request to fulfill for the US to just extend the Privacy Act's scope to every human being! Is that a too high price to pay for widespread access to European data?]

Misunderstanding Arizona: II) the unfree foreigner

As mentioned in my earlier post, Arizona has enacted a new law, the SB1070, which requires foreigners but not US citizens to always carry an ID card on them as failure to do so constitutes a crime, and which allows any law enforcement officer during a legitimate stop of a person to check that person's immigration status if there is a "reasonable suspicion" that he or she is in the country illegally. The law has created an intense debate and several lawsuits. One of the main issues heatedly debated by the American public opinion has been the question of what constitutes a "reasonable suspicion", and how this cannot not result in racial profiling and in hassles especially for foreign-looking Americans. In that sense the SB1070 has been accused of being a racist law. The law - opponents claim - will deny (irregular) immigrants the "equal protection of the law" as mandated by the US constitution and make communities unsafer rather than safer. Regardless of the merits that this criticism might have, unfortunately no one seems to elaborate it enough or to bring the charge of racism or hostility towards foreigners (which seems to be a more appropriate term) against the very idea that underlies the law, namely that only a certain part of the population has to carry an ID card on them at all times lest to commit a crime. No one of the public opinion seems to question the basic fact that only foreigners be imposed such a burden. (Actually I came across one interesting and read worthy exception even though the author's reasons might be more connected to the effectiveness and racial profiling arguments, which I explored in my earlier post.) Could the reason for this be that SB1070 in many parts just repeats federal law? Indeed, many parts that SB1070 is criticized for are not that different at the federal level. So maybe rather than criticizing SB1070 it would be better to first examine what the federal law says before accusing Arizona of racism.

In the US, US citizens are not required to have or carry an ID card, and a national ID card system does not even exist. In the meantime, for foreigners, the Immigration and Nationality Act Section 264 (INA §264), as consolidated by 8 USC 1304 (e) and which goes back to the Alien Registration Act of 1940, (for an explanation, see here), foresees that:

"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."

Hence, be it according to federal law, be it according to the Arizonan law, the situation that is of our interest here is the same: Whereas US citizens under both legislations do not have the duty to have, let alone carry along an ID card, aliens do not only need to have an ID card, but they have to have it in their own personal possession at all times. More importantly, failure to do so does not just constitute a civil infraction sanctioned by some administrative fine, such as crossing a red light or speeding, but constitutes a misdemeanor, i.e. a crime. As such, I assume, it will result in an entry in the alien's criminal record. This seems like a huge imbalance of rights in favor of US citizens and like an obviously unequal treatment. I assume few people would disagree. Yet, can this sort of discrimination really be called racism?

People all over the world seem to accept the notion that foreigners be granted less rights than citizens in certain aspects. In that sense, few people would think that restricting voting rights to citizens constitutes racism. Yet, the reason for this is because the rights in question are political rights which by their very definition are reserved to people belonging to a certain group. But the problem with the Arizonan law and the US federal law that the former replicates is that none of them is about political rights. They are about rights that in American belief should safeguard an individual's life from undue interference from the government, and ensure that one be free to live his or her life. They are about privacy rights. This is also something that the German Minister of Interior Thomas de Maiziere explained to the European public when defending the US commitment to privacy protections. He was cited as explaining that:

"While Germans are perfectly comfortable with showing their ID cards with all personal data to a police officer, [...] the very idea of such a document is outrageous to Americans and Britons." (emphasis added)

And the engrained link between privacy rights and the opposition to ID cards was also confirmed by the US ambassador to the EU William Kennard when he explained in an interview,

"America is seen by some as not caring about privacy as much as those in Europe. But this portrayal is a caricature [..] When I arrived in Belgium a few months ago I was told that I had to have an identity card and that I would have to carry it with me everywhere. This is something that would be unthinkable in the US." (see page 7; emphasis added)

Yet, it is not unthinkable – not if you are non-American. And this is where the charge of racism comes in: Privacy rights and fundamental freedoms are conceived of as human rights and have their roots in the Enlightenment tradition that continues to shape both Europe and the US. As such, there is no legitimate distinction that can be made between citizens and non-citizens: If Americans don't want to be obliged to carry along an ID card as this might expose them to governmental tyranny and infringe on their fundamental freedom, then why do their representatives impose this on others? This is also in contradiction to the "Golden Rule", widely accepted by all major civilization as a compass to what can be considered moral, and which in its negative formulation states: "Do not do to others as you would not have them do to you." In that sense, it is precisely because of the very meaning Americans themselves attach to ID cards, whose rejection is perceived as a guarantee of their fundamental freedoms, that the Arizonan and the US legislation can be accused of racism: Why should foreigners not be allowed to lead a life free from undue governmental interference? Why is their private and undisturbed life not worthy of protection? Civil and privacy rights might be conceived of differently in different places, but they can't differ on the basis of what type of human being you are. Yet, this is what the current legal framework in the US – be it SB1070 or the INA §264 – does, and why it appears to be racist: it constitutes an illegitimate discrimination insofar as it restricts certain human rights to a certain category of human beings only. That such a discrimination has no foundation was also recently recognized by U.S. District Judge Susan Bolton when she blocked parts of the SB1070 before they could enter into effect, when she judged that the law "burdens lawfully-present aliens because their liberty will be restricted while their status is checked."

So let's be clear, defenders of Arizona are right when they say that for the most part, SB1070 just repeats federal law and that the harsh way in which Arizona is currently criticized is unjust. I agree, and I want to defend Arizona: its legislation might be considered racist, but we shouldn't apply double-standards. Everyone who accuses Arizona's legislation of racism, should also pick a bone with the related US legislation. It is a burden to have to carry an ID card on you at all times under the threat of criminal punishment, and it is not clear why this burden should be imposed only on a certain part of the population (especially since only an indiscriminate application of that law to everyone would make the law an effective tool for national security and in the fight against illegal immigration as seen in my earlier post).

Maybe some of you can find some reasons or don't think it is a burden to carry an ID card around, but in any case some people have the choice, while others don't. It is a pity that in the proud land of the free, some people are simply freer than others.

Misunderstanding Arizona: I) the flaw in the law

A lot has been said about Arizona in recent months due to its new law Arizona SB1070 which requests law enforcement officers to enquire the immigration status of foreigners "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States", while making it a crime for a foreigner to fail to carry proper immigration documentation. Supporters as well as non-supporters of the law have a point. Yet, - and even though part of the law is for the time being blocked by a US District Judge ruling - what seems to be insufficiently addressed by the public debate is that previous federal experiences should tell us that the logic of the law is too flawed to make it an effective tool in fighting illegal immigration: It has already been reported that a US citizen had been detained in Arizona before the law entered into force until his wife could recover his US birth certificate, thus proving his citizenship. Opponents of the law have rightly cited this instance to prove the hassle the law risks creating for foreign-looking Americans. This is a good start. Yet, the broader picture seems to be missing from the critique, as emphasis seems to be put more on the inconvenience SB1070 creates for a certain category of Americans, and on the danger of racial profiling rather than on how this instance should make us question the law's very effectiveness and its inherent dangers, not to mention the neglected new discourse that basically puts any foreigner under the presumption of being in the country illegally. (Indeed, people that are worried about racial profiling and are questioning the meaning of a "reasonable suspicion" seem to forget that the law entitles law enforcement officers to check the immigration status when there is a reasonable suspicion that a person is in the country illegally, not when there is a reasonable suspicion that someone is a foreigner. Maybe it is just my impression, but people seem much less worried about the risk that soon the existence of a reasonable suspicion that someone is a foreigner might be seen as reason enough to stop and search someone on the street. But to get back to the point…)

If the purpose of the SB1070 is amongst others to authorize and even promote law enforcement officers to identify illegal aliens – to stick to official US language that some people may perceive as being offensive - while carrying out their other duties, then one should wonder if it is not quite ineffective to require only foreigners to carry an identity proof. How do you know who is a foreigner? (Again, actually the question should be who is an illegal immigrant!) Of course, that must be easy: naturalized Americans will lose their accent the day of their naturalization, whereas there will always be something inherently weird or strange about illegal aliens that makes them easily identifiable, even if they were brought to the US at the age of 4 or 6 years, right? This sarcastic question might seem trivial, as statistically speaking the huge majority of foreigners will have an accent, and the huge majority of Americans will not and will fit in better with other Americans. Yet, what about the minority (how minor is it though?) that doesn't fit these statistics? Imagine you are in a car and get stopped by a mobile border patrol checkpoint because of a random check or because something seems suspicious. You are asked if you are a US citizen, some people in the car say "yes", others say "no", this being the only interaction. You'll get pulled over because of the "no" and the "no"-person will have to show his or her documents to prove his/her lawful presence in the country. Then you will drive away without the "yes"-person being checked. I know for a fact that this has already happened. True, if you are a US citizen, you can't be in the country illegally, but how do you know that the "yes"-person actually said the truth? Illegal immigrants, especially the longer they have been in the country illegally, are most likely to be good at blending in, and might pull off an "I am an American" without being one (even though impersonating a US person constitutes a crime). Will a "yes" betray the accent?

To put the problem in less anecdotal terms, before US citizens were required to have a passport when crossing the US border (or other acceptable documents, clearly identified by DHS, the Department of Homeland Security), people have been known to manage to enter the United States simply by making oral assertions that they were US citizens, or even by not doing anything except sitting in a car. (For official testimonies by the GAO see for instance this document or this. For an academic testimony and interesting analysis see here.) As it is with irregular immigration, it is hard to say how many of the 12 million undocumented immigrants have actually made successful use of these oral declarations of citizenship to gain access to the US. But the US has recognized this loophole in its border security when it introduced the Western Hemisphere Travel Initiative that imposes certain identification requirements on anyone who wants to cross the US border – US citizens included. Put differently, based on its experience at the federal level, DHS has already acknowledged that a system that does not require everyone to give evidence about their identity and citizenship is ineffective and insecure. 

But then, if irregular immigrants have been enabled to become irregular immigrants simply by lying when crossing the border, then why should they not be capable of staying irregular immigrants when asked by a police officer for their papers and they firmly maintain they are US citizens? It would be naïve to think that police officers, not trained for dealing specifically with immigration and border security issues, will never fall for wrongful statements of citizenship. And why should we not believe that some illegal aliens are actually good liars? In the end they did manage to somehow break the immigration law without having been caught so far! Admittedly, one might say that few illegal immigrants will successfully endure an encounter with someone checking their legality in the country. And the system might not be completely waterproof, but even if one of the 12 million "illegals" is not caught, then well, it doesn't really matter, since a majority still will. An imperfect system might still be better than no system. The harm is not huge. Is it?

But what about the other side of the coin? What if you actually are a US citizen, but law enforcement officers don't believe you? Also here a look at the federal level would be helpful, as it has already been repeatedly reported that US citizens have been detained in removal proceedings, and some were pretty close to, or have actually been deported to foreign countries. What seems incredible is widely documented and reported by cases as the one I briefly mentioned above, or by others such as this one or this. While official statistics seem to be unavailable, the latter source estimates that one US citizen is deported each day, and that SB1070 will most likely just exacerbate the problem. Another analysis, by University Professor Jacqueline Stevens who closely follows the actions of Immigration and Customs Enforcement (ICE, a US agency part of DHS), reports that in 2009 alone about 4000 US citizens have been detained in ICE detention (the ICE does not have the authority to detain US citizens). She has directly followed 30 cases where US citizens have been deported to a foreign country. Admittedly, how accurate these numbers and estimates are, is a matter of debate, but fact remains that the phenomenon does exist.

Even if the total number of US citizens wrongfully affected by ICE action might in the end be a relatively small number compared to the overall population of the Unites States, it nevertheless is "not a rarity". And one should not forget that, however rare, wrongfully deporting US citizens does not constitute a minor administrative error: It results in a complete disruption of that person's life, not only in economic terms, but also in terms of family and social life. It means being exiled to a foreign country. And then you have to add those "rarities" that are associated to "merely" wrongfully detaining US citizens in immigration proceedings for a prolonged period of time without them being deported. Is catching a few more illegal immigrants worth that cost? It should be clear that far from being a harmless immigration detention, immigrants are often held like criminals even though being in the country illegally – contrary to popular belief – does not constitute a crime but a civil infraction only. (Information and reports on detention conditions are easily retrievable through google with which you can make up your own mind.) Should such a system be called effective system or broken?

Given the drawbacks of the current system, namely the ineffectiveness of establishing who really is allowed to be in the country and who is not, one has to wonder if a law such as the SB1070 that aims at increasing ID checks is a wise decision. It is unintelligible why most people do not seem to really grasp this issue in its full dimension. As a wild guess, I'd say that as long as the majority of the US population can think "well, being wrongfully deported or detained won't happen to me", no one will question whether or not the effectiveness of the current legal framework makes it worth it.

What makes the current situation kind of tragic though is that if the US absolutely has to stick to its imposition on foreigners to have a certain form of identification on them at all times and if certain parts of the country feel the need to enforce this law by increasing ID checks, the flaw in the system could be remedied so easily. It would be remedied, if only US citizens were given an unmistakably nation-wide recognized form of ID with which to prove their citizenship that they would have to carry on them at all times. But this, despite the obvious benefits that this would have, seems too much of a sacrifice to ask of US citizens.

Let's hope they all know where their birth certificate is and no one questions its validity or contests that there is no biometric tie to the person who claims to be the owner of it.

[Comment: Actually in 2005, Congress passed the Real ID Act that would basically institute a national ID system and at least de facto require US citizens to possess some secure form of ID card. Yet, the idea behind the Real ID Act remains controversial and its future is uncertain: some US States have refused to participate in the federal system foreseen by that law, and the deadline to implement it has been pushed from 2008 to 2014 first and then to 2017, while another law – the Pass ID – might repeal the Real ID Act altogether. As Jim Harper, director of information policy studies at the Cato Institute in Washington, believes, "[no one] in the next administration, including Napolitano, wants to deal with Real ID." (see here.)]

[Comment: I recognize the misunderstanding that the last paragraph could create, therefore I would like to make clear that I do not care if Americans need to carry a national ID card - this is their place to decide. I just wanted to highlight that the issue identification/no identification should be regulated in a unitary way, and why no different requirements should be created based on citizenship. In that sense, no-ID card also remains an option.]

Schizophrenic Europe

The EU Commissioner for Home Affairs, Cecilia Malmström held a speech at the LIBE Committee meeting of the European Parliament on June 10, testifying on the ongoing EU-US renegotiation of the so-called SWIFT agreement that would grant US authorities access to the bank data of EU citizens. This in addition to some media reports has so far been the only concrete information on the results of the secret negotiations that has been given to the public.

Despite some progress made with regard to the previous agreement such as denying US authorities direct access rights to European databases or the possibility to withdraw from the agreement at any time, some questions remain unresolved: it seems unsatisfactory that once - and if - the EU decides to set up its own Terrorist Financing Tracking Programme (TFTP), the EU will only transfer less data to US authorities, but the US will not be forced to reciprocate, i.e. concede EU authorities access rights to the bank data of US citizens. If the US' TFTP is really just designed for terrorist purposes, and not to be abused for immigration control, criminal or commercial espionage purposes (on the latter, see the fears to the contrary of the Federation of German Industries (BDI)), then why should the US not trust in us, Europeans, the same way we do in the US and give us access to their bank data? Reciprocity was a key condition the European Parliament wanted to see integrated in the new agreement and it seems to be an easy to fulfill condition. Yet, the European Parliament will most likely remain disappointed.

As troubling as this might be, much more troubling is however that Malmström in her speech did not even spend a single word on the right of EU citizens to judicial redress, and that only the media provided the public with some information in regard. Judged by the media reports, it appears that the EU might be satisfied with the US' willingness to apply the Freedom of Information Act (FOIA) to the European data that is to be processed under the SWIFT agreement. This sounds good at first, especially if like me you are not an expert on US law let alone the FOIA. Luckily the US State Department provides normal citizens and non-citizens with an "information access guide" that explains them their rights. It states:

"The Freedom of Information Act (FOIA) generally provides that any person has the right to request access to federal agency records or information […]"

The same guide also explains the rights that arise under the Privacy Act:

"The Privacy Act guarantees three primary rights:

1. The right to see records about oneself, subject to Privacy Act exemptions;

2. The right to request the amendment of records that are not accurate, relevant, timely or complete; and

3. The right of individuals to be protected against unwarranted invasion of their privacy resulting from the collection, maintenance, use, and disclosure of personal information."

Wait a minute. The guide goes on:

"The procedures for filing a Privacy Act request for personal records maintained by the Department of State are the same as those described under Requesting Personal Records under the FOIA in this guide with the following exceptions:

1. You must be a citizen of the United States or an alien lawfully admitted for permanent residence to make a request under the Privacy Act.

4. No fees shall be charged for access to or amendment of records requested under the Privacy Act."

 

So, as I said, I am not an expert on US law and things might appear different once the exact terms of the SWIFT agreement will be disclosed, but judged on media reports and Malmström's silence on judicial redress it seems that even under the new agreement the EU might be content if EU citizens are granted the right to judicially enforce their "right [whose exercise requires the payment of a fee] to request access to federal agency records or information," but not the right to seek judicial redress if their records are inaccurate or their rights to privacy are being abused. This discrepancy between claims made on the basis of the US Privacy Act and the FOIA might sound like a shocking revelation. It would be shocking, if only the US had not already officially admitted this to the EU institutions long time ago back in 2008 (see page 5 and 6). So what is it that is wrong with EU policy-makers?

Maybe Europeans are simply plain stupid. Or maybe they have too much good faith. Being incapable negotiators might be another explanation, as might be the lack of any form of self-respect. Or should we resort to conspiracy theories where EU Member States have the hidden agenda of eroding privacy protections through international agreements as a precedent to be followed up soon in domestic legislation? How else can the persistence in the to-be-approved SWIFT agreement of such a fundamental flaw as is the lack of adequate judicial redress be explained? What have all the negotiations been good for?

Goodwill and intelligence assumed, the solution might be that Europeans are simply schizophrenic: It cudgels one's brain trying to understand how we Europeans can be willing to grant a foreign government a right – widespread interference in Europeans' privacy in disrespect of EU data protection standards and judicial redress mechanisms - we don't even grant our own governments which we can hold accountable through elections and lawsuits, and whose mandate is to work in our interest. Authorizing the SWIFT agreement would in that sense be a true sign of schizophrenia.

Let's just hope that the European Parliament did not vote down the first agreement for power struggle reasons, but for genuine privacy concerns, in which case we all might hope it might not approve the new deal brokered by the Commission that continues to be detrimental to EU citizens' interests. Should they approve it nevertheless, then all that remains is the sad comfort we all may find in the saying "in a democracy, people get the government they deserve." Maybe Europeans just don't deserve better.

The burden of proof – overthrow in progress

I wish people were not asking why data protection is important. I wish they weren't asking why it is a big deal to give governments and private companies widespread access to our personal data. Even more so, I wish people weren't asking me to justify my opposition to privacy invasions and especially my opposition to data sharing agreements with third countries. I wish they weren't, because I shouldn't be asked to. The fact that they do it nevertheless is a regrettable sign of the changing zeitgeist turning its back on political liberalism.

Opposing privacy invasions by public authorities doesn't mean that I consider myself important enough to be observed by the government, and even less that I have something to hide – this for the same reasoning for which in Western legal systems exercising one's right to remain silent cannot be interpreted as evidence to support the claim that the defendant is guilty. Such a constitutional right has a purpose, and no one should be asked to justify why he or she is asserting it. But when advocating for data protection this is what I am asked to do. All I want to do is to assert my personal and fundamental freedoms without needing to defend such assertion. Nothing more, nothing less. Indeed, by opposing privacy invasion I simply invoke my constitutional right to privacy, and hence my "right to be let alone", to determine what data of mine are to be public and which are not. As with other rights, I don't need to exercise my right to privacy consistently. I will still benefit from my constitutionally granted freedom of speech, even if my speeches keep contradicting themselves or if I do not always want to exercise this freedom of mine. In the same way, it is up to my own scrutiny on a case-by-case basis to decide if and how to exercise my right to privacy, while I have no obligation to justify why I want to exercise it. Therefore, I might be willing to share my photos on facebook, but it doesn't imply I have to agree to a foreign government screening my banking data or medical records. I might agree to the police entering my apartment without a warrant, but I might refuse them access next time they present themselves unwarranted (of course, there is always the exception to the inviolability of the home for overriding threats to public safety, but they usually require an imminent, concrete and urgent threat situation whose existence can be questioned in a courtroom afterwards).

Moreover, the burden of proof does not fall on me. My right to privacy being a fundamental right is presumed to be the rule, to be applicable and existing. Of course, just as the right to property, privacy is not an absolute right. Yet, it is not my place to prove anything: It is not my duty to prove that I did not rob the bank. It is the prosecutor's duty to prove that I did. It is not my duty to give the judge a reasonable explanation of why I do not want my neighbor to cross my property. Once I proved my right to property, my neighbor would need to invoke an existing exception or limitation to it, e.g. a contract with which I granted him/her access rights, or one of the servitudes existing in civil law systems. If the claimant can't prove such a right, too bad for him/her: my right prevails. The same reasoning should apply to my right to privacy.

Therefore, instead of asking me to justify my opposition to privacy invasions, people should request the government to provide some justifications proving that it has a legally legitimate claim to disregard my privacy. The obligation lies with the government, not with me, and up to now governments haven't credibly presented such a justification. Of course, since issues involving national security and intelligence are the reasons invoked to justify the overriding of data protections, it is difficult for governments to bring forward the necessary evidence given the existence of state secrets and the need to keep certain information confidential for public safety reasons. Still, this is first and foremost the governments' problem. Even if the judge believes my neighbor that I granted him/her access rights to my property, without sufficient evidence the judge cannot (at least in civil law countries) by all goodwill rule in my neighbors' favor.

Of course, in the case of data protection and state secrets more is at stake: governments want to protect their citizens. It can be a matter of life and death. Maybe governments should therefore be given the benefit of the doubt that they wouldn't abuse the state secret exception (even though no government gives me the benefit of the doubt for not being a terrorist!). In the end this is what most of us are doing anyway. Who really believes in the possibility of Western governments trying to assume totalitarian powers in the post-World War II era? What interest would they even have to put their citizens under constant surveillance beyond what is strictly necessary for the protection of their citizens? Unfortunately Western governments do not have so clean records after all, as state secrets have already been illegitimately invoked to try covering up shameful misbehaviors on part of the governments themselves. Therefore, the verdict for me is clear: unless more substantial evidence is brought forward on the need to limit citizens' right to privacy, we can't but to rule in favor of data protection. It would just be too simple to let governments off the hook on the mere basis of general pronouncements of national security. Given the overall climate in the age of the global war on terror, it truly would be an act of faith if we gave governments the benefit of the doubt, exonerating them from the burden of proof.

Joe Biden: “…if we are honest with one another”

If there is one thing, Americans are good at, it is giving speeches, convincing people with the force of their own self-confidence, by appealing to other people's beliefs, hopes, and by stating their goodwill. One of these Americans is US-Vice-President Joe Biden who gave a 30 minutes speech at the European Parliament on May 6^th, 2010. His speech was remarkable. Moving. Characterized by a seemingly impeccable rhetoric, Biden's speech had the potential to convince everyone – it even almost convinced me, since I am one of these Europeans that would hope to have reasons to believe in the enduring existence of a special transatlantic relationship, that "we need each other".

Biden would have convinced me had I not been aware of the broader context of how reality looks like if not colored by emotionally laden words. One could pick an argument with Biden's claim that the "US and Europe, if working together, can achieve anything they want," that "the US wants a strong Europe", that "America's commitment to privacy is profound – profound as yours (i.e. the Europeans)". But I don't want to attack his speech, since there was one basic truth in it that I am immensely grateful for he mentioned, and on which the US seems to be way ahead of Europe. We should thank Biden for reminding us that a "government's primary and most fundamental and most solemn duty is to protect its citizens, the citizens it serves, as well as the rights they hold." What the limits of executing this duty are is another question. Fact remains that Biden is right – at least in principle. In that sense, Europeans have to understand that US politicians have a duty to protect the "physical safety" of their citizens. Europeans might feel alienated by such a citizen-centered policy, but maybe our unease and dissatisfaction with US politics would evaporate if we could only acknowledge that, justifiably, the life of an American has to be the prime concern of any US government, and thus matter more than the privacy rights of Europeans. One could think that such a "the interest of my citizens justifies any mean" argument puts MEPs (Member of the European Parliament) in an awful position: How can they reproach the US for protecting their citizens?! But if one listens closely, thankfully, Biden himself gave us the answer of why the US can make no claim to European legislators to help the US carry out this duty, why Europeans do not have a duty to approve the to be renegotiated SWIFT agreement or the agreement on PNR (Passenger Name Records). As Biden luckily reminded us, the European Union's "primary and most fundamental and most solemn duty is to protect its citizens, the citizens it serves, as well as the rights they hold," i.e. in this case the rights of European and not American citizens. Even though some people on both sides of the Atlantic tend to forget this, the European Parliament couldn't care less about the physical safety of Americans if caring entailed compromising its own citizens' fundamental freedoms.

But I said at the beginning, I wished there were reasons to believe in the enduring existence of a special transatlantic relationship. And sometimes legally protected interests are in opposition to one another, while the more important or fundamental one should prevail. So maybe, Europe, for moral reasons or as a matter of showing its maturity to finally carry part of the burden to maintain international stability, could make unilateral sacrifices for the lives of our fellow American friends, and could relinquish some of the fundamental rights Europeans enjoy. Let's not worry about the trustworthiness of the US government and administration, about the human right standards they apply to foreigners or their unwillingness to reciprocate. Let's ignore these little voices in our head that should warn us against any data sharing agreement with the US. Let's ignore them for a working and long-lasting transatlantic relationship that we seem to value above everything else. Let's not question the necessity, effectiveness or adequacy of their requests. …. Or shall we?

The US government by largely restricting the access by Europeans to its records on the results of all its counter-terrorism efforts makes it hard for us to assess whether or not US efforts are beneficial to us, and whether or not they are necessary, effective and adequate to protect American lives. This means that no direct cost-benefit analysis can indicate us whether or not privacy invasions can be justified for counter-terrorism purposes. Luckily, all this is secondary, as a more philosophical question of perceived necessity can tell Europe about the fairness of US' requests. Maybe it is contrary to popular belief, but Americans are not willing to have their security guaranteed at all costs: they cry out loud when certain people suggest denying suspected terrorists the right to purchase firearms. They are outraged by any government's interference in their personal lives (just look at facts such as the opposition to the introduction of nation-wide ID cards or e-verify, the public discourse of politicians, the media – liberal and others - and reader comments. Interesting are also statements of many American civil rights associations such as the ACLU or the Identity Project). The US Privacy Act of 1974 provides the bottom line of the extent to which Americans are willing to compromise the protection of their own personal data. Unfortunately, as it does not apply to non-permanently resident non-US citizens, it does not at all protect Europeans (unless they are green card holders) as can be seen here, here and here (this latter link is also very instructive on the trustworthiness of the US government and administration).

So let's be honest with one another: All this talk about needing each other and working together doesn't matter a whole lot of nothing. When the European Parliament will be asked to authorize data transfers to the US, all it really needs to ask in order to decide what to do is as simple as that: If not even Americans are willing to give up their own constitutional rights for the greater good of ensuring their physical safety, then why should Europeans? The US basically requests Europe to authorize data transfers even though the protection offered to the concerned data subjects (Europeans) would be less than what Americans under the US Privacy Act consider an acceptable bottom line for themselves. But then, why should Europeans compromise their fundamental freedoms for others if not even Americans believe in the necessity and proportionality of making such a sacrifice for their own lives.

I wonder if America has an honest answer to that…

Hello world, this is me and my blog.

A couple of weeks ago I decided to start a blog. Not a blog about myself, but one about the world, of how I see politics, values and related conflicts. I decided to start this blog to give an outlet to all my ideas, observations, my anger and desperations about mankind's stupidity and hubris, but also to express the joy of seeing people fighting for what they believe in, to be part of that segment of the population that believes their voices can help shape the world. Maybe they are right, maybe they are wrong, but nothing is worse than not trying for the fear of failing, than sticking to one's status quo assumptions only because they appear to be unalterable, because alternatives seem politically unacceptable or idealistic. Why being so negative? We should all be a little bit more visionary.

So this is what pushed me into starting my own blog. I have been told the first entry is the most difficult one. And based on my experience it is true. To circumvent the problem, I decided to write the second blog entry first. Knowing that there would be another "first" entry actually did make it easier to write the "second" entry. Even though I am still not satisfied with that one, I could now easily go on and write the third and fourth etc. entry.

But the problem I wanted to circumvent resurfaced when actually writing the true "first" entry. Do I introduce myself? Do I explain what topics my blog will tackle? What tone do I want to set, what explanations do I want to give? But the truth is I can't give you the answers to this: As to introducing myself, I know who I am but the only way for you to find out will be to read my blog. Any direct answers or introductions would be meaningless, just as with cover letters: of course everyone is "reliable", "a good team player", "very analytical", "honest:" and whatnot. It is only time that will tell how accurate these affirmations really are. The same goes with anything I could say right here right now when describing who I am.

As to what my blog will be like or what it will be about, I don't have the answers to these questions. I know that I have reasons to keep my blog anonymous at least for now, and I will always try to be consistent in my opinions for I hate inconsistencies. Therefore I hope that anyone who detects an inconsistency will point it out to me so that I can reconsider and refine what I said. But for all the other questions I don't know yet if I want my blog to be written as impersonally or as personally as possible. I don't know yet how much exactly I will write about what topic, or how regularly. I want my blog to evolve naturally, to "find its own way". I am sure my blog posts today will look completely different from the ones I will post in a year. My writing style will certainly shift and become more consolidated, but these are all reasons why I can't give you a "preview" yet on my blog.

I know I have a problem with sticking to the essential and keeping things short. I stray from the point quite easily, since I am pretty opinionated and biased in that I usually have something to say on everything, while I don't want to generate the impression of having just an opinion that is not well-founded. Hence, my straying from the point. I am open to having my opinions questioned, but I want them to be questioned for the right reasons, and not because someone misunderstands what I am saying. Right or wrong, they usually are the result of some informed choice and derive from the assumptions I have about the world. 

This was the problem with my "second" entry: the problem is just too big to be tackled within one post. There are so many counter-arguments that I would have wanted to counter preemptively, and I recognize that my "second" blog entry seems like an open invitation to misunderstandings. But to prevent them would have required ten more entries at least, whereas I was trying to stick to the point. I will probably incur in these types of problems quite often, at least at the beginning, and it will probably make regular, present and future blogging difficult for me until I will finally find the right balance.

And here we go, my first inconsistency is already detected: I said I didn't want to write about me or my blog, and here I go writing about the two. Maybe this is a sign that I should just get into blogging without any explanations and whatnot. In the end this is what pushed me into it at the beginning. But what can I say, we humans are all living contradictions, and therefore, inevitably, so am I.