Security and Data Sharing
Richard, Mark, Lebl, Leslie S., Policy Review
THE TERRORIST ATTACKS of September 11, 2001, mark the beginning of a new era in transatlantic cooperation to combat terrorism. As EU High Representative for Common Foreign and Security Policy Javier Solana put it, this cooperation has been "one of the unsung transatlantic success stories," evolving over the years regardless of the political climate between the United States and Europe.
While this success has been genuine, counter-terrorist cooperation at the operational level between the United States and Europe still has a long way to go. Terrorism and its frequent companion, organized transnational crime, continue to enjoy many advantages. In Europe, the role of the EU as an institutional entity in combating terrorism and organized transnational crime has expanded during the past decade as Europeans seek to devise a common response to these transnational threats. However, the way in which this process has occurred has often caused serious problems among the 27 EU member states and is beginning to do the same for the United States.
Essentially, EU integration in these fields has been driven largely by political rather than practical imperative. To advance European integration, policymakers often drive and propose new structures or other responses from the bottom up as they have traditionally done. As a result, EU decisions all too often fall short of their stated goal of combating terrorism or organized crime. Further, while the need to respond realistically and effectively to the threats from terrorism and organized crime has soared, the means for doing so have become ever more complex. Now as never before, non-law enforcement agencies must be actively engaged, including those focusing on national security, diplomatic, military, and economic functions. (1) In the United States, the federal system creates a complex and often duplicative or overlapping environment that militates against a holistic response. Now Europe, as it carves out a role for the EU transcending that of the member states, is largely replicating that complexity on its side of the Atlantic.
In this extremely challenging setting, transatlantic disagreements are to be expected. However, recent disputes, primarily over sharing personal data--a technical issue about which most people know little or nothing--are on the verge of disrupting mutually beneficial cooperation. The potential for serious adverse repercussions will only grow if key provisions, affecting law enforcement, of the Treaty of Lisbon are adopted and implemented.
The Treaty of Lisbon, the proposed next stage of EU integration, was originally scheduled for adoption in 2009.(2) Following the June 2008 "no" vote by the Irish, its future is unclear. Like its predecessor, the Constitutional Treaty rejected in French and Dutch referendums, the Lisbon Treaty contains many proposals that, even if formally rejected, are likely to reappear in some other for. It calls for new and sweeping revisions of internal EU decision-making procedures as well as fuller participation of the European Parliament in many law enforcement and regulatory areas. These provisions could have a dramatic adverse impact on the ability of the United States (and member states) to share information and intelligence in a timely and constructive fashion. The operations of a wide range of regulatory and other civil agencies either directly or indirectly engaged in combating terrorism and organized crime could also be adversely affected.
Nor are disputes over the sharing of personal data likely to be confined merely to the EU and the United States. Rather, as with policies in other areas such as trade and environment, the EU will be seeking to have its standards for international exchanges of information adopted worldwide.
Unfortunately, in the United States, the federal structure greatly complicates efforts to devise a coherent interagency and intergovernmental strategy for dealing with the EU. …