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!

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.

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…