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.
