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…