speed bumps and accelerators: emerging issues in transatlantic border management
TRANSCRIPT
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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BORDER SECURITY POLICY PAPER SERIES
SPEED BUMPS AND ACCELERATORS
Emerging Issues in Transatlantic Border Management
PATRYK PAWLAK
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copy 2014 Te German Marshall Fund o the United States All rights reserved
No part o this publication may be reproduced or transmitted in any orm or by any means without permission in writing
rom the German Marshall Fund o the United States (GMF) Please direct inquiries to
Te German Marshall Fund o the United States
1744 R Street NW
Washington DC 20009
1 202 683 2650
F 1 202 265 1662
E inogmusorg
Tis publication can be downloaded or ree at httpwwwgmusorgpublicationsindexcm Limited print
copies are also available o request a copy send an e-mail to inogmusorg
About the International Border Security Forum
Te German Marshall Fund o the United States (GMF) hosts the International Border Security Forum to enhance under-
standing between senior multilateral policymakers and build cooperation on the most pressing border security challenges
Tis program brings together political level representatives rom the member states o the European Union the United
States Canada and Israel Te ormat o the meetings is an off-the-record conversation among a small yet highly selective
group o senior policymakers and designated senior experts Te accompanying series o policy brie deepens the discus-
sion and provides inormation to the larger border security community
About GMF
Te German Marshall Fund o the United States (GMF) strengthens transatlantic cooperation on regional national and
global challenges and opportunities in the spirit o the Marshall Plan GMF does this by supporting individuals and institu-
tions working in the transatlantic sphere by convening leaders and members o the policy and business communities
by contributing research and analysis on transatlantic topics and by providing exchange opportunities to oster renewed
commitment to the transatlantic relationship In addition GMF supports a number o initiatives to strengthen democra-
cies Founded in 1972 as a non-partisan non-profit organization through a gif rom Germany as a permanent memorial to
Marshall Plan assistance GMF maintains a strong presence on both sides o the Atlantic In addition to its headquarters in
Washington DC GMF has offices in Berlin Paris Brussels Belgrade Ankara Bucharest Warsaw and unis GMF also has
smaller representations in Bratislava urin and Stockholm
On the cover An airport at sunset copy Chalabalaistockphoto
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M983137983154983139983144 983090983088983089983092
By Patryk Pawlak 2
1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office
2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF
Introduction 1
Mobility and Technology 3
Migration and Technology 6
Threats without Borders 9
Cross-Cutting Issues Speed Bumps and Accelerators 11
Scenarios for Future Cooperation 13
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1
Whether dealing wi
migratory pressure
or strengthening th
capacities of secur
sector a required
response often
goes beyond purelydiplomatic efforts a
includes cooperatio
on certain aspects
internal security
The aim of the border management policieshas traditionally been to protect the citizens
by preventing dangerous individuals and
materials from getting into a specific territory
According to that paradigm a physical border of
a country is the last stop where a statersquos security
mechanisms are tested before an external problem
becomes an internal one The security functions
are then performed by agencies other than border
guards mdash law enforcement and intelligence services
in particular However the terrorist attacks that
have hit the United States and Europe since 2001
have exposed the limitations of that approachConsequently on both sides of the Atlantic there
was increased focus on the implementation of more
comprehensive border management approaches
like integrated border management (IBM) designed
by the EU as a response to expanding EU borders
and the ldquosmart bordersrdquo paradigm in the United
States that relies on pushing the borders out The
rationale behind such approach is that any danger
should be detected at its origin and prevented from
reaching the physical border of a concerned state
As a result the process of border control is split
into two stages pre-screening at a point of originand verification and control at the physical border
of a receiving state Such a layered approach implies
the need for more international cooperation
including through joint threat prevention programs
and capacity building (eg provision of detection
equipment to foreign governments or increasing
supply chain security efforts to track cargo)
More recent developments have added to the
complexity of this picture First the instability
across the Middle East and North Africa Sahel
or in the Horn of Africa made the link betweeninternal security and foreign policies even more
pronounced Whether dealing with migratory
pressures or strengthening the capacities of security
sector a required response often goes beyond
purely diplomatic efforts and includes cooperation
on certain aspects of internal security At theirmeeting in December 2013 the EU heads of
states and governments acknowledged the need to
increase the synergies between Common Security
and Defence Policy (CSDP) and actors involved
in various dimensions of freedom security and
justice including by strengthening the support for
third countries in order to improve their border
management capacities Concrete examples of
already deployed missions include the EUrsquos Border
Assistance Mission in Libya (EUBAM Libya) the
EU Training Mission in Mali (EUTM Mali) and
the CSDP mission EUCAP Sahel Niger
In addition to political determinants there are a
number of facts that provide additional impulse
to the discussion about the future of border
management It is estimated for instance that the
number of travelers to the EU Member States will
increase by 80 percent to reach 720 million a year
The International Air Transport Association (IATA)
provides another set of data According to their
Airline Industry Forecast 2012-2016 international
passenger numbers are expected to grow from
111 billion in 2011 to 145 billion passengers in2016 bringing in 331 million new passengers By
2016 the top five countries for international travel
measured by number of passengers will be located
in the transatlantic area the United States and
four EU member states mdash the United Kingdom
Germany Spain and France Border agencies
admit openly that the existing border control
and border check systems are simply not able to
handle this ever increasing pressure In addition
the growing constraints on public finances in
many countries place additional pressure on state
authorities to protect their own economic interestsincluding using measures that extend beyond
their physical borders For instance the global
cost of piracy is estimated from $1 to 16 billion
while for drug-trafficking this number amounts
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Designing efficient
border management
policies is increasingly
difficult and is a
constantly moving
target
to $600 billion (5 percent of global GDP)1
It doesnot come as a surprise therefore that the focus on
the fight against financially motivated crime (eg
counterfeiting cybercrime etc) is a priority
For those reasons designing efficient border
management policies is increasingly difficult and
is a constantly moving target The challenge is to
propose solutions that will be efficient and effective
in making borders secure The investment in new
security and surveillance technologies is often seen
as a move toward achieving this objective The
EU for instance devotes substantial resources toprojects that explore and evaluate potential benefits
mdash in terms of efficiency cost effectiveness and
accuracy mdash that could be brought to maritime wide
area surveillance by new concepts such as remotely
controlled airborne sensors unmanned airborne
platforms and new algorithms At the same time
however the policy needs to take into account
the ethical implications as well as the societal and
economic impact of the measures in order to render
them acceptable to public opinion This aspect
is particularly relevant in discussing the use of
unmanned aerial vehicles (UAVs) for surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC
or racial and ethnical profiling Reconciling thesetwo dimensions on border management remains a
key challenge
The purpose of this paper is to look at some of the
most pressing challenges to border management
policies in the transatlantic area Borders are
treated as physical spaces where the link between
external and internal security is most visible
whenever efforts to deal with a specific challenge
by diplomatic or other means fail the consequences
will be felt on the borders This is the case with
Syria where the continued conflicts and theabsence of political solution have resulted in record
numbers of Syrian refugees on the EU borders In
the United States the difficulties experienced by
the government of Mexico in dealing with drug-
traffickers and gangs in the north translate into
problems on the US-Mexico borders and within
the US territory itself Finally despite development
aid provided to poorest nations each year millions
of people abandon their homes and migrate in
the search of a better life This paper looks at
border management in a broader context whereby
borders represent the last line of ldquodefenserdquo before anexternal issue becomes an internal problem in the
transatlantic area
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2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
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4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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copy 2014 Te German Marshall Fund o the United States All rights reserved
No part o this publication may be reproduced or transmitted in any orm or by any means without permission in writing
rom the German Marshall Fund o the United States (GMF) Please direct inquiries to
Te German Marshall Fund o the United States
1744 R Street NW
Washington DC 20009
1 202 683 2650
F 1 202 265 1662
E inogmusorg
Tis publication can be downloaded or ree at httpwwwgmusorgpublicationsindexcm Limited print
copies are also available o request a copy send an e-mail to inogmusorg
About the International Border Security Forum
Te German Marshall Fund o the United States (GMF) hosts the International Border Security Forum to enhance under-
standing between senior multilateral policymakers and build cooperation on the most pressing border security challenges
Tis program brings together political level representatives rom the member states o the European Union the United
States Canada and Israel Te ormat o the meetings is an off-the-record conversation among a small yet highly selective
group o senior policymakers and designated senior experts Te accompanying series o policy brie deepens the discus-
sion and provides inormation to the larger border security community
About GMF
Te German Marshall Fund o the United States (GMF) strengthens transatlantic cooperation on regional national and
global challenges and opportunities in the spirit o the Marshall Plan GMF does this by supporting individuals and institu-
tions working in the transatlantic sphere by convening leaders and members o the policy and business communities
by contributing research and analysis on transatlantic topics and by providing exchange opportunities to oster renewed
commitment to the transatlantic relationship In addition GMF supports a number o initiatives to strengthen democra-
cies Founded in 1972 as a non-partisan non-profit organization through a gif rom Germany as a permanent memorial to
Marshall Plan assistance GMF maintains a strong presence on both sides o the Atlantic In addition to its headquarters in
Washington DC GMF has offices in Berlin Paris Brussels Belgrade Ankara Bucharest Warsaw and unis GMF also has
smaller representations in Bratislava urin and Stockholm
On the cover An airport at sunset copy Chalabalaistockphoto
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155
E983149983141983154983143983145983150983143 I983155983155983157983141983155 983145983150 T983154983137983150983155983137983156983148983137983150983156983145983139 B983151983154983140983141983154 M983137983150983137983143983141983149983141983150983156983089
B983151983154983140983141983154 S983141983139983157983154983145983156983161 P983151983148983145983139983161 P983137983152983141983154983155
M983137983154983139983144 983090983088983089983092
By Patryk Pawlak 2
1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office
2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF
Introduction 1
Mobility and Technology 3
Migration and Technology 6
Threats without Borders 9
Cross-Cutting Issues Speed Bumps and Accelerators 11
Scenarios for Future Cooperation 13
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I983150983156983154983151983140983157983139983156983145983151983150
1
Whether dealing wi
migratory pressure
or strengthening th
capacities of secur
sector a required
response often
goes beyond purelydiplomatic efforts a
includes cooperatio
on certain aspects
internal security
The aim of the border management policieshas traditionally been to protect the citizens
by preventing dangerous individuals and
materials from getting into a specific territory
According to that paradigm a physical border of
a country is the last stop where a statersquos security
mechanisms are tested before an external problem
becomes an internal one The security functions
are then performed by agencies other than border
guards mdash law enforcement and intelligence services
in particular However the terrorist attacks that
have hit the United States and Europe since 2001
have exposed the limitations of that approachConsequently on both sides of the Atlantic there
was increased focus on the implementation of more
comprehensive border management approaches
like integrated border management (IBM) designed
by the EU as a response to expanding EU borders
and the ldquosmart bordersrdquo paradigm in the United
States that relies on pushing the borders out The
rationale behind such approach is that any danger
should be detected at its origin and prevented from
reaching the physical border of a concerned state
As a result the process of border control is split
into two stages pre-screening at a point of originand verification and control at the physical border
of a receiving state Such a layered approach implies
the need for more international cooperation
including through joint threat prevention programs
and capacity building (eg provision of detection
equipment to foreign governments or increasing
supply chain security efforts to track cargo)
More recent developments have added to the
complexity of this picture First the instability
across the Middle East and North Africa Sahel
or in the Horn of Africa made the link betweeninternal security and foreign policies even more
pronounced Whether dealing with migratory
pressures or strengthening the capacities of security
sector a required response often goes beyond
purely diplomatic efforts and includes cooperation
on certain aspects of internal security At theirmeeting in December 2013 the EU heads of
states and governments acknowledged the need to
increase the synergies between Common Security
and Defence Policy (CSDP) and actors involved
in various dimensions of freedom security and
justice including by strengthening the support for
third countries in order to improve their border
management capacities Concrete examples of
already deployed missions include the EUrsquos Border
Assistance Mission in Libya (EUBAM Libya) the
EU Training Mission in Mali (EUTM Mali) and
the CSDP mission EUCAP Sahel Niger
In addition to political determinants there are a
number of facts that provide additional impulse
to the discussion about the future of border
management It is estimated for instance that the
number of travelers to the EU Member States will
increase by 80 percent to reach 720 million a year
The International Air Transport Association (IATA)
provides another set of data According to their
Airline Industry Forecast 2012-2016 international
passenger numbers are expected to grow from
111 billion in 2011 to 145 billion passengers in2016 bringing in 331 million new passengers By
2016 the top five countries for international travel
measured by number of passengers will be located
in the transatlantic area the United States and
four EU member states mdash the United Kingdom
Germany Spain and France Border agencies
admit openly that the existing border control
and border check systems are simply not able to
handle this ever increasing pressure In addition
the growing constraints on public finances in
many countries place additional pressure on state
authorities to protect their own economic interestsincluding using measures that extend beyond
their physical borders For instance the global
cost of piracy is estimated from $1 to 16 billion
while for drug-trafficking this number amounts
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Designing efficient
border management
policies is increasingly
difficult and is a
constantly moving
target
to $600 billion (5 percent of global GDP)1
It doesnot come as a surprise therefore that the focus on
the fight against financially motivated crime (eg
counterfeiting cybercrime etc) is a priority
For those reasons designing efficient border
management policies is increasingly difficult and
is a constantly moving target The challenge is to
propose solutions that will be efficient and effective
in making borders secure The investment in new
security and surveillance technologies is often seen
as a move toward achieving this objective The
EU for instance devotes substantial resources toprojects that explore and evaluate potential benefits
mdash in terms of efficiency cost effectiveness and
accuracy mdash that could be brought to maritime wide
area surveillance by new concepts such as remotely
controlled airborne sensors unmanned airborne
platforms and new algorithms At the same time
however the policy needs to take into account
the ethical implications as well as the societal and
economic impact of the measures in order to render
them acceptable to public opinion This aspect
is particularly relevant in discussing the use of
unmanned aerial vehicles (UAVs) for surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC
or racial and ethnical profiling Reconciling thesetwo dimensions on border management remains a
key challenge
The purpose of this paper is to look at some of the
most pressing challenges to border management
policies in the transatlantic area Borders are
treated as physical spaces where the link between
external and internal security is most visible
whenever efforts to deal with a specific challenge
by diplomatic or other means fail the consequences
will be felt on the borders This is the case with
Syria where the continued conflicts and theabsence of political solution have resulted in record
numbers of Syrian refugees on the EU borders In
the United States the difficulties experienced by
the government of Mexico in dealing with drug-
traffickers and gangs in the north translate into
problems on the US-Mexico borders and within
the US territory itself Finally despite development
aid provided to poorest nations each year millions
of people abandon their homes and migrate in
the search of a better life This paper looks at
border management in a broader context whereby
borders represent the last line of ldquodefenserdquo before anexternal issue becomes an internal problem in the
transatlantic area
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M983151983138983145983148983145983156983161 983137983150983140 T983141983139983144983150983151983148983151983143983161
2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
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E983149983141983154983143983145983150983143 I983155983155983157983141983155 983145983150 T983154983137983150983155983137983156983148983137983150983156983145983139 B983151983154983140983141983154 M983137983150983137983143983141983149983141983150983156983089
B983151983154983140983141983154 S983141983139983157983154983145983156983161 P983151983148983145983139983161 P983137983152983141983154983155
M983137983154983139983144 983090983088983089983092
By Patryk Pawlak 2
1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office
2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF
Introduction 1
Mobility and Technology 3
Migration and Technology 6
Threats without Borders 9
Cross-Cutting Issues Speed Bumps and Accelerators 11
Scenarios for Future Cooperation 13
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I983150983156983154983151983140983157983139983156983145983151983150
1
Whether dealing wi
migratory pressure
or strengthening th
capacities of secur
sector a required
response often
goes beyond purelydiplomatic efforts a
includes cooperatio
on certain aspects
internal security
The aim of the border management policieshas traditionally been to protect the citizens
by preventing dangerous individuals and
materials from getting into a specific territory
According to that paradigm a physical border of
a country is the last stop where a statersquos security
mechanisms are tested before an external problem
becomes an internal one The security functions
are then performed by agencies other than border
guards mdash law enforcement and intelligence services
in particular However the terrorist attacks that
have hit the United States and Europe since 2001
have exposed the limitations of that approachConsequently on both sides of the Atlantic there
was increased focus on the implementation of more
comprehensive border management approaches
like integrated border management (IBM) designed
by the EU as a response to expanding EU borders
and the ldquosmart bordersrdquo paradigm in the United
States that relies on pushing the borders out The
rationale behind such approach is that any danger
should be detected at its origin and prevented from
reaching the physical border of a concerned state
As a result the process of border control is split
into two stages pre-screening at a point of originand verification and control at the physical border
of a receiving state Such a layered approach implies
the need for more international cooperation
including through joint threat prevention programs
and capacity building (eg provision of detection
equipment to foreign governments or increasing
supply chain security efforts to track cargo)
More recent developments have added to the
complexity of this picture First the instability
across the Middle East and North Africa Sahel
or in the Horn of Africa made the link betweeninternal security and foreign policies even more
pronounced Whether dealing with migratory
pressures or strengthening the capacities of security
sector a required response often goes beyond
purely diplomatic efforts and includes cooperation
on certain aspects of internal security At theirmeeting in December 2013 the EU heads of
states and governments acknowledged the need to
increase the synergies between Common Security
and Defence Policy (CSDP) and actors involved
in various dimensions of freedom security and
justice including by strengthening the support for
third countries in order to improve their border
management capacities Concrete examples of
already deployed missions include the EUrsquos Border
Assistance Mission in Libya (EUBAM Libya) the
EU Training Mission in Mali (EUTM Mali) and
the CSDP mission EUCAP Sahel Niger
In addition to political determinants there are a
number of facts that provide additional impulse
to the discussion about the future of border
management It is estimated for instance that the
number of travelers to the EU Member States will
increase by 80 percent to reach 720 million a year
The International Air Transport Association (IATA)
provides another set of data According to their
Airline Industry Forecast 2012-2016 international
passenger numbers are expected to grow from
111 billion in 2011 to 145 billion passengers in2016 bringing in 331 million new passengers By
2016 the top five countries for international travel
measured by number of passengers will be located
in the transatlantic area the United States and
four EU member states mdash the United Kingdom
Germany Spain and France Border agencies
admit openly that the existing border control
and border check systems are simply not able to
handle this ever increasing pressure In addition
the growing constraints on public finances in
many countries place additional pressure on state
authorities to protect their own economic interestsincluding using measures that extend beyond
their physical borders For instance the global
cost of piracy is estimated from $1 to 16 billion
while for drug-trafficking this number amounts
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Designing efficient
border management
policies is increasingly
difficult and is a
constantly moving
target
to $600 billion (5 percent of global GDP)1
It doesnot come as a surprise therefore that the focus on
the fight against financially motivated crime (eg
counterfeiting cybercrime etc) is a priority
For those reasons designing efficient border
management policies is increasingly difficult and
is a constantly moving target The challenge is to
propose solutions that will be efficient and effective
in making borders secure The investment in new
security and surveillance technologies is often seen
as a move toward achieving this objective The
EU for instance devotes substantial resources toprojects that explore and evaluate potential benefits
mdash in terms of efficiency cost effectiveness and
accuracy mdash that could be brought to maritime wide
area surveillance by new concepts such as remotely
controlled airborne sensors unmanned airborne
platforms and new algorithms At the same time
however the policy needs to take into account
the ethical implications as well as the societal and
economic impact of the measures in order to render
them acceptable to public opinion This aspect
is particularly relevant in discussing the use of
unmanned aerial vehicles (UAVs) for surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC
or racial and ethnical profiling Reconciling thesetwo dimensions on border management remains a
key challenge
The purpose of this paper is to look at some of the
most pressing challenges to border management
policies in the transatlantic area Borders are
treated as physical spaces where the link between
external and internal security is most visible
whenever efforts to deal with a specific challenge
by diplomatic or other means fail the consequences
will be felt on the borders This is the case with
Syria where the continued conflicts and theabsence of political solution have resulted in record
numbers of Syrian refugees on the EU borders In
the United States the difficulties experienced by
the government of Mexico in dealing with drug-
traffickers and gangs in the north translate into
problems on the US-Mexico borders and within
the US territory itself Finally despite development
aid provided to poorest nations each year millions
of people abandon their homes and migrate in
the search of a better life This paper looks at
border management in a broader context whereby
borders represent the last line of ldquodefenserdquo before anexternal issue becomes an internal problem in the
transatlantic area
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M983151983138983145983148983145983156983161 983137983150983140 T983141983139983144983150983151983148983151983143983161
2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
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4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
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wwwgmfusorg
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I983150983156983154983151983140983157983139983156983145983151983150
1
Whether dealing wi
migratory pressure
or strengthening th
capacities of secur
sector a required
response often
goes beyond purelydiplomatic efforts a
includes cooperatio
on certain aspects
internal security
The aim of the border management policieshas traditionally been to protect the citizens
by preventing dangerous individuals and
materials from getting into a specific territory
According to that paradigm a physical border of
a country is the last stop where a statersquos security
mechanisms are tested before an external problem
becomes an internal one The security functions
are then performed by agencies other than border
guards mdash law enforcement and intelligence services
in particular However the terrorist attacks that
have hit the United States and Europe since 2001
have exposed the limitations of that approachConsequently on both sides of the Atlantic there
was increased focus on the implementation of more
comprehensive border management approaches
like integrated border management (IBM) designed
by the EU as a response to expanding EU borders
and the ldquosmart bordersrdquo paradigm in the United
States that relies on pushing the borders out The
rationale behind such approach is that any danger
should be detected at its origin and prevented from
reaching the physical border of a concerned state
As a result the process of border control is split
into two stages pre-screening at a point of originand verification and control at the physical border
of a receiving state Such a layered approach implies
the need for more international cooperation
including through joint threat prevention programs
and capacity building (eg provision of detection
equipment to foreign governments or increasing
supply chain security efforts to track cargo)
More recent developments have added to the
complexity of this picture First the instability
across the Middle East and North Africa Sahel
or in the Horn of Africa made the link betweeninternal security and foreign policies even more
pronounced Whether dealing with migratory
pressures or strengthening the capacities of security
sector a required response often goes beyond
purely diplomatic efforts and includes cooperation
on certain aspects of internal security At theirmeeting in December 2013 the EU heads of
states and governments acknowledged the need to
increase the synergies between Common Security
and Defence Policy (CSDP) and actors involved
in various dimensions of freedom security and
justice including by strengthening the support for
third countries in order to improve their border
management capacities Concrete examples of
already deployed missions include the EUrsquos Border
Assistance Mission in Libya (EUBAM Libya) the
EU Training Mission in Mali (EUTM Mali) and
the CSDP mission EUCAP Sahel Niger
In addition to political determinants there are a
number of facts that provide additional impulse
to the discussion about the future of border
management It is estimated for instance that the
number of travelers to the EU Member States will
increase by 80 percent to reach 720 million a year
The International Air Transport Association (IATA)
provides another set of data According to their
Airline Industry Forecast 2012-2016 international
passenger numbers are expected to grow from
111 billion in 2011 to 145 billion passengers in2016 bringing in 331 million new passengers By
2016 the top five countries for international travel
measured by number of passengers will be located
in the transatlantic area the United States and
four EU member states mdash the United Kingdom
Germany Spain and France Border agencies
admit openly that the existing border control
and border check systems are simply not able to
handle this ever increasing pressure In addition
the growing constraints on public finances in
many countries place additional pressure on state
authorities to protect their own economic interestsincluding using measures that extend beyond
their physical borders For instance the global
cost of piracy is estimated from $1 to 16 billion
while for drug-trafficking this number amounts
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Designing efficient
border management
policies is increasingly
difficult and is a
constantly moving
target
to $600 billion (5 percent of global GDP)1
It doesnot come as a surprise therefore that the focus on
the fight against financially motivated crime (eg
counterfeiting cybercrime etc) is a priority
For those reasons designing efficient border
management policies is increasingly difficult and
is a constantly moving target The challenge is to
propose solutions that will be efficient and effective
in making borders secure The investment in new
security and surveillance technologies is often seen
as a move toward achieving this objective The
EU for instance devotes substantial resources toprojects that explore and evaluate potential benefits
mdash in terms of efficiency cost effectiveness and
accuracy mdash that could be brought to maritime wide
area surveillance by new concepts such as remotely
controlled airborne sensors unmanned airborne
platforms and new algorithms At the same time
however the policy needs to take into account
the ethical implications as well as the societal and
economic impact of the measures in order to render
them acceptable to public opinion This aspect
is particularly relevant in discussing the use of
unmanned aerial vehicles (UAVs) for surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC
or racial and ethnical profiling Reconciling thesetwo dimensions on border management remains a
key challenge
The purpose of this paper is to look at some of the
most pressing challenges to border management
policies in the transatlantic area Borders are
treated as physical spaces where the link between
external and internal security is most visible
whenever efforts to deal with a specific challenge
by diplomatic or other means fail the consequences
will be felt on the borders This is the case with
Syria where the continued conflicts and theabsence of political solution have resulted in record
numbers of Syrian refugees on the EU borders In
the United States the difficulties experienced by
the government of Mexico in dealing with drug-
traffickers and gangs in the north translate into
problems on the US-Mexico borders and within
the US territory itself Finally despite development
aid provided to poorest nations each year millions
of people abandon their homes and migrate in
the search of a better life This paper looks at
border management in a broader context whereby
borders represent the last line of ldquodefenserdquo before anexternal issue becomes an internal problem in the
transatlantic area
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2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
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4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
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wwwgmfusorg
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Designing efficient
border management
policies is increasingly
difficult and is a
constantly moving
target
to $600 billion (5 percent of global GDP)1
It doesnot come as a surprise therefore that the focus on
the fight against financially motivated crime (eg
counterfeiting cybercrime etc) is a priority
For those reasons designing efficient border
management policies is increasingly difficult and
is a constantly moving target The challenge is to
propose solutions that will be efficient and effective
in making borders secure The investment in new
security and surveillance technologies is often seen
as a move toward achieving this objective The
EU for instance devotes substantial resources toprojects that explore and evaluate potential benefits
mdash in terms of efficiency cost effectiveness and
accuracy mdash that could be brought to maritime wide
area surveillance by new concepts such as remotely
controlled airborne sensors unmanned airborne
platforms and new algorithms At the same time
however the policy needs to take into account
the ethical implications as well as the societal and
economic impact of the measures in order to render
them acceptable to public opinion This aspect
is particularly relevant in discussing the use of
unmanned aerial vehicles (UAVs) for surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC
or racial and ethnical profiling Reconciling thesetwo dimensions on border management remains a
key challenge
The purpose of this paper is to look at some of the
most pressing challenges to border management
policies in the transatlantic area Borders are
treated as physical spaces where the link between
external and internal security is most visible
whenever efforts to deal with a specific challenge
by diplomatic or other means fail the consequences
will be felt on the borders This is the case with
Syria where the continued conflicts and theabsence of political solution have resulted in record
numbers of Syrian refugees on the EU borders In
the United States the difficulties experienced by
the government of Mexico in dealing with drug-
traffickers and gangs in the north translate into
problems on the US-Mexico borders and within
the US territory itself Finally despite development
aid provided to poorest nations each year millions
of people abandon their homes and migrate in
the search of a better life This paper looks at
border management in a broader context whereby
borders represent the last line of ldquodefenserdquo before anexternal issue becomes an internal problem in the
transatlantic area
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2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
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2
Governments tend
see the opportuniti
offered by new
technologies as a
solution to all their
problems
An important component of bordermanagement is ensuring security without
hindering the movement of people and
goods across borders For instance the vertical
integration of North American industries
puts increasing pressure on the need for trade
facilitation and potential trade disruptions
Regional business communities in at least nine of
the ten Canadian provinces now export more to the
United States than to the rest of Canada To that
aim the idea of smart borders was first discussed at
the G8 summit in Kananaskis in Canada in 2002
It was initially meant as an instrument to facilitatetrade between the United States Mexico and
Canada The proposal foresaw the establishment of
special trilateral inspection teams to jointly inspect
vehicles and once given the green light such vehicle
would be able to move across borders without
additional border controls
The essence of smart borders mdash as defined by
the Bush Administration in 2002 mdash was for ldquothe
borders of the futurerdquo to ldquointegrate actions abroad
to screen goods and people prior to their arrival
in sovereign US territoryrdquo Reliance on the state-of-the-art technology is generally seen as a way to
track cargo as well as to monitor individuals In
the United States the application of a smart border
paradigm resulted in the extended application
of existing tools (eg the use of Passenger Name
Records (PNR) for screening purposes) or gave
birth to new instruments like the Electronic System
of Travel Authorisation (ESTA) In an effort to
depart from a one-size-fits-all model to a more
intelligence-driven and risk-based approach the
Department of Homeland Security has in recent
years introduced a number of trusted travelerprograms that allow for expedited screening of
low-risk passengers TSA Pretrade (for passengers
traveling domestically within the United States and
for international travel when departing from a US
airport that participates in TSA Pretrade) Global
Entry (allows expedited clearance for pre-approvedlow-risk travelers upon arrival in the United States)
Nexus (for travelers between United States and
Canada) and Sentri (for travelers between United
States and Mexico)
In 2008 the European Union presented its own
smart border package which included the rollout
of the Entry-Exit System (EES) for non-EU citizens
or the establishment of the EUrsquos own Passenger
Name Record system None of these measures
has been fully introduced yet although the EU
made substantial progress toward modernizingits border management system It upgraded the
existing mechanisms (eg second generation of the
Schengen Information System SIS II) increased
the competence of specific internal security
agencies (eg Europol Frontex) and established a
new agency to manage all essential instruments in
the implementation of EU asylum migration and
border management policies (the EU Agency for
Large-Scale IT Systems eu-LISA)
Whereas nowadays the smart border paradigm
remains predominant in shaping border
management policies the whole system is
increasingly under stress for a number of reasons
First governments tend to see the opportunities
offered by new technologies as a solution to
all their problems which may lead to function
creep and consequently undermine trust in the
whole approach For instance several European
governments would like to use proposed border
control and migration management systems like
the EES for law enforcement and counter-terrorism
purposes The European Commission however has
expressed concerns about the proportionality testbetween on one hand all the personal data to be
collected and stored in the EES and on the other
hand the usefulness of allowing the use of EES for
combating crime
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
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4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
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he nature of flaws and
potential threats has
also gradually evolved
It is no longer about
making sure that third
ountry nationals do not
cross borders illegallybut increasingly about
preventing countryrsquos
own nationals from
posing a danger
Second the roll-outof new systems is
increasingly questioned
for the reason of their
economic and societal
consequences The costs
of the implementation
of the EntryExit System
and the Registered
Traveller Programme
(RTP) would need to
be covered by member
states with the supportof the European Union
This is reflected in
the next multi-annual
financial framework for
2014-20 which includes
euro4648 billion for the
Internal Security Fund
(ISF) that finances new
large-scale IT systems
and an additional euro822
million set aside for the
management of existinglarge scale-IT systems
(Schengen Information
System II Visa
Information System
and EURODAC) and
the eu-LISA Past
experiences are also
complicating the task
for advocates of these new technologies In 2010
the implementation cost of the SIS II rose to euro135
million from the euro23 million foreseen in 2001
Furthermore the argument regarding the negative
impact of those instruments on fundamental
freedoms mdashin particular on the right to privacy mdash
is constantly made by civil liberties organizations
Finally the nature of flaws and potential threats has
also gradually evolved It is no longer about making
sure that third country nationals do not cross
borders illegally but increasingly about preventing
countryrsquos own nationals from posing a danger
The EU Terrorism Situation and Trend Report for
2013 for instance highlights the effort of several
EU countries in addressing their own indigenous
terrorist problem among separatist movements
single-issue terrorists or rightleft wing terrorism
Box 1 Foreign Fighters and Returnees from Syria
Several security agencies focus on addressing the threats to internal security
posed by Jihadists travelling to Syria and other hotspots According to the
International Centre for the Study of Radicalisation up to 11000 individuals
from 74 nations have become opposition fighters in Syria It is estimated that
the number among Western Europeans has more than tripled from (up to) 600
in April to 1900 in December 2013 mdash which represent up to 18 percent of the
foreign fighter population in Syria Official data released by individual countries
confirm this growing trend The French and Danish governments have doubled
their estimates since the beginning of 2013 the Belgian British and German
governments have quadrupled their numbers These figures include those who
are currently present as well as those who have since returned home been
arrested or killed Other identified individuals come from Southeast Asia North
America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada
(between 9 and 100) and the United States (between 17 and 60) Only about 20
percent of the sources stated group affiliations primarily to Jabhat al-Nusra and
the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups
with close links to al Qaeda
According to the EU Counterterrorism Coordinator the response to this challenge
needs to combine various approaches
bull Legal cooperation including adequacy of legal frameworks criminal
response and the use of administrative sanctions and information
exchange in the context of investigation and prosecution
bull De-radicalization and humanitarian assistance projects as a viable
alternative for those interested in helping in Syria
bull Border management instruments including the implementation of the
EU PNR system increased and harmonized use of SIS alert system and
developing risk indicators
bull Cooperation with priority third countries including Turkey Jordan Egypt
Libya Western Balkans and capacity building assistance
Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official
documents
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
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4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
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wwwgmfusorg
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that can move freely across borders In most of suchcases the methods used by border management
agencies are of limited use For instance the
currently existing large-scale databases cannot help
in identifying self-radicalized individuals unknown
to any law enforcement agency Even more telling
is the participation of European and US citizens
in conflicts or terrorist attacks in other parts of
the world mdash an issue that recently arose to the
top of the political agenda For instance there is
some evidence suggesting that a British woman
Samantha Lewthwaite was involved in the siege
at a Kenyan shopping center in September 2013The estimates of the number of fighters from
Western Europe in Syria are equally worrying
According to the International Center for the Study
of Radicalisation this number ranges from 396 to
1937 individuals and is quite significant given thatidentifying them is extremely difficult Whereas
identification of foreign fighters poses a problem
primarily for border guards it also demonstrates
that complex challenges require a comprehensive
policy response including de-radicalization
projects humanitarian aid projects intelligence
and judicial and law enforcement measures (see
Box 1) The ongoing court case against three young
Frenchmen suspected of their willingness to join
jihad in Syria on the other hand demonstrates the
challenges of similar cases for the judicial system
The problem of foreign fighters also becomes thesubject of discussions between the EU and its
partners in the region in particular with Turkey
and Israel
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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The United States
and countries of the
European Union have
made numerous
modifications to
their migration
policies including theadjustments in their
visa policies or identity
verification methods
Despite the fact that the debates aboutmigration seem to focus on different
issues in Europe and in the United States
mdash Europeans discuss how to limit the cases of
illegal border crossings whereas Americans focus
on dealing with immigrants that are already on
their territory mdash both sides still share a number
of common challenges According to the Pew
Research Center report on changing patterns
of global migration released in December 2013
Europe and North America are the top two
destination regions of international migrants
In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent
of all foreign-born people living in the United
States coming from Latin American and the
Caribbean countries According to the same report
the share of international migrants in Europe
remained constant although the composition
of this group has changed considerably with a
substantial number
of intra-European
migrations occurring
as a consequence
of successiveenlargements of the
European Union
Nevertheless a
considerable number
of migrants come
from countries like
Morocco Algeria
Turkey India or
refugee-sending
countries like
Somalia or Iraq
The composition
of this group has
changed over the past
few years with the
continuous instability in Middle East and NorthAfrica
Over the past decade the United States and
countries of the European Union have made
numerous modifications to their migration
policies including the adjustments in their visa
policies or identity verification methods through
the introduction of new technologies including
biometric identifiers in travel documents or
as a part of the visa application procedure But
these methods provide only a partial remedy in
the case of individuals who decide to cross theborders illegally The recourse to traditional border
protection methods like increased patrols or
strengthening the infrastructure (ie the fence or
sensors along the US-Mexican border) also help
to address this challenge but require significant
human and financial resources According to the
Frontex Annual Risk Analysis in 2012 there was a
49 percent drop in illegal border crossings between
M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161
3
Figure 1 Concerns about Immigration in the United States and Selected
EU countries
Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom
0
10
20
30
40
50
60
70
80
90
100
Legal immigration
Illegal immigration
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
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The shifting migrat
routes and high
expectations for se
governance expres
by citizens toward t
governments provid
impulse for increasinvestment in secu
and surveillance
technologies for bo
protection
Turkey and Greece compared to 2011 (the so-calledEastern Mediterranean route) due to an increased
presence of border guards along the border It is not
clear however how sustainable such an approach is
The shifting migratory routes and high
expectations for security governance expressed
by citizens toward their governments provide an
impulse for increasing investment in security and
surveillance technologies for border protection
The Pew Research Center report mentioned earlier
confirms ldquodramatic reductions in arrivals of new
unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in
border surveillance infrastructure (eg sensors
fence)2 The US Department of Homeland
Security deployed thermal camera systems mobile
surveillance systems and remote video surveillance
systems along northern and southwestern borders
It also expanded the unmanned aircraft system
(UAS) coverage with approximately 1150 miles
coverage along the Northern border and the
entire Southwest border Similarly several efforts
were made by the European Union including the
launch of the European Border Surveillance System(EUROSUR) in December 2013 EUROSUR is
a multipurpose system to prevent cross-border
crime and irregular migration and to contribute to
protecting migrantsrsquo lives at the external borders
(see Box 2) In addition the EU provided its
financial support for security-oriented research
through the Framework Programme for Research
(FP6 and FP7) and their successor Horizon 2020
which is the EUrsquos biggest research and innovation
program ever with nearly euro80 billion of funding
available over 7 years (2014 to 2020) For instance
the previously funded projects focused onsurveillance in wide maritime areas either by using
a surveillance system installed on buoys or more
complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009 more undocu-mented Mexicans left the United States than went there illegally
(UAVs) to build a common operating picturethrough detection localization identification and
tracking of targets that can be classified as a threat
movingentering the border
Notwithstanding numerous efforts a relatively
high percentage of Europeans and Americans
still view migration as a security challenge The
situation is even more delicate in countries that
were hit particularly hard by the financial crisis
like Italy Greece or Spain The most recent
analysis also suggests that the risks of illegal
border-crossing along the land borders of theEastern Mediterranean route and across the
Central Mediterranean area remain highest due
to instability in North Africa and Middle East
In 2012 Afghans remained the most detected
nationality for illegal border-crossing but the
growth in the level of detections across the EU
was highest for Syrians (+389 percent compared
to 2011) who fled the civil war in their country
to seek asylum The risk is further mounted by
poor performance of border management across
the region itself In the absence of well-developed
border management capacities including thelegal framework hardware and well trained
border guards the illicit flows across unsecured
borders (drugs conventional arms sanctioned
contraband terrorists and their funds weapons of
mass destruction-related materials and conflict
minerals) pose an increasing threat to international
peace and security The conflict in Mali is a good
example of how spill-overs from one country may
influence regional stability In response the EU
under the Instrument for Stability provided euro22
million for a project implemented in cooperation
with Interpol and the Libyan authorities to maketangible improvements to Libyan border security
and help security sector reform That includes
for instance providing the Libyan border control
authorities with access to INTERPOL databases
and the INTERPOL network to detect stolen and
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lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
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6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S9831569831379831569831419831558
lost passports andhelp identify wanted
persons including
suspected terrorists
and international
criminals Similarly
the US authorities
through the Merida
Initiative mdash a
counterdrug and
anticrime assistance
package for Mexico
and CentralAmerica mdash support
training programs
for police forces in
Mexico including in
modern investigative
techniques
promoting a culture
of lawfulness and
implementing key
justice reforms
Furthermore
the US Agencyfor International
Development
(USAID) supports
Mexican efforts
to mitigate the
community-level impact of crime and violence and
to implement safeguards for citizensrsquo rights in the
criminal justice constitutional reforms
Box 2 European Border Surveillance System (EUROSUR)
The first phase of EUROSUR was officially launched on December 2 2013 with the
objective to reinforce control of the Schengen external borders It will initially be
operational in 19 countries and in a total of 30 countries as of December 1 2014
EUROSUR will establish a mechanism through which member states and the EU
border agency Frontex will be able to share operational information and cooperate
in order to reduce the number of irregular migrants and to increase internal security
by preventing cross-border crime Special emphasis has been given to ensure the
compliance with fundamental rights and obligations under international law
The system employs intelligence-driven approach to border surveillance The
backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which
all national authorities with a responsibility for border surveillance (eg border
guard police coast guard navy) are required to cooperate and to coordinate their
activities
Frontex plays an important role in bringing together and analyzing the ldquoEuropean
situational picturerdquo information collected by member states thereby detecting
changing routes or new methods used by criminal networks This European
situational picture also contains information collected during Frontex joint
operations and on the pre-frontier area The external land and sea borders have
been divided into border sections and a low medium or high impact level is
being attributed to each of them similar to a traffic light This approach identifies
hotspots at the external borders with a standardized reaction at the national and
if needed European level
Data may be collected from ship reporting systems in accordance with their
respective legal bases satellite imagery and sensors mounted on any vehicle
vessel or other craft Early detection is also possible thanks to cooperation with
third countries in various networks Seahorse Atlantic (with Morocco Mauretania
Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum
(with Ukraine Georgia Russia and Turkey)
Source European Commission
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
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Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
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institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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The difficulty with effective bordermanagement stems also from the non-
physical nature of some challenges
Pandemics natural crises or the consequences of
human-made disasters are often felt across borders
The policy responses are either rather limited or
non-existent or simply too costly (eg a complete
shutdown of traffic across borders)
A different type of challenge comes from activities
in cyberspace which do not fit neatly within
physically or legally defined borders Swedish
Foreign Minister Carl Bildt in his speech duringthe Seoul Cyber Conference in October 2013
described the cyberspace as the mirror of our
societies and of our worldrdquo He drew an accurate
comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are
there Spies are thererdquo The access to Information
and Communications Technologies (ICTs) has in
many ways changed the nature of crime and made
its detection more difficult Stopping cybercrime
at borders by blocking the traffic coming from a
country where the most of the crime originates
mdash although possible in theory mdash would be very
difficult to implement given the very high cost that
such an indiscriminate move would have for the
population of that country
Therefore while the nature of cybercrime goes
beyond the traditionally understood border
paradigm (ie no physical controls hence limited
T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155
4
Box 3 Cybercrime Capacity Building in Eastern Europe
The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime
(2001) is one of its main objectives To that aim the EU and the Council of Europe (CoE) are working together
to support measures against cybercrime based on existing tools and instruments and to ensure effective
implementation of the Convention
The CyberCrimeEAP is a regional project to strengthen the capacities of criminal justice authorities
of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and
international instruments and practices The countries covered by the project are Armenia AzerbaijanMoldova Ukraine (parties to the Convention) Georgia (preparing ratification) and Belarus (indicated interest
in accession) The project addresses policies and awareness of decision-makers harmonized and effective
legislation based on the Budapest Convention on Cybercrime judicial and law enforcement training on
cybercrime and electronic evidence law enforcement international cooperation and financial investigations
At the level of practical achievements the project contributed to enhancing the capabilities of law
enforcement and judicial authorities to detect investigate prosecute and adjudicate cybercrime Relevant
provisions in project countries were assessed from the perspective of their compliance with international
standards Regional events were organized to exchange experience and share good practices which
increased knowledge of methods used by offenders as well as of tools and good practices to investigate
Synergies were created with a broad range of initiatives and organizations in particular developed at the
European Union level (eg Cybercrime Centres of Excellence for Training Research and Education or
2CENTRE) the Organization for Security and Cooperation in Europe (OSCE) Organization for Democracy and
Economic Development (GUAM) and others
Building on this experience the EU and CoE have also launched a joint project called the Global Action
on Cybercrime The project has a global scope and will support in a pragmatic manner states that are
prepared to implement the Budapest Convention It is expected that by the end of the project up to 70
states will participate in international efforts on cybercrime using the Budapest Convention as their common
framework
Source Council of Europe
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
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Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512
deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620
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The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1320
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ways of identifying a threat at the border crossing)the response to cybercrime is still restricted by
typical border-related and spatially constraining
concepts like sovereignty and jurisdiction In
other words while the perpetrators are not limited
by physical space and operate in a borderless
environment the respondents are governed by
the rules of physical world and can operate only
within their own jurisdiction This in turn moves
the responsibility for addressing cybercrime from
border guards to law enforcement agencies andadds significance to international cooperation on
cybercrime In that context the promotion of the
standards enshrined in the Budapest Convention
on Cybercrime adopted by the Council of Europe
in 2001 and building capacities of countries
that wish to align their legislation and response
mechanisms with the convention remain high
priorities (see Box 3)
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 11
Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512
deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13
The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1420
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 11
Despite advantage
they may offer sec
and surveillance
technologies raise
questions about th
ethical aspects of t
use and their impa society and its valu
including accounta
and transparency
human dignity and
good governance
As the challenges described in previoussections demonstrate the separation
between law enforcement border
management intelligence and defense mdash while
still present in legal systems and institutions mdash is
slowly disappearing in functional terms making
it difficult to neatly separate individual state
functions and policy responses Nevertheless the
specific choice embedded in each of those areas will
either accelerate or create problems for transatlantic
cooperation in border management
Balancing Development Diplomacy andDefense
The lines between security and development are
increasingly blurred Delivering development
aid becomes impossible in conflict areas or
territories where the security situation is unstable
Development is also an important element in
the discussions about the migration policy since
improving the living conditions in countries of
origin is one of the ways to deal with migratory
pressures The intervention in Libya the crisis in
Mali and the terrorist attack in Algeria are clearly
interlinked and require a comprehensive approach
In such a context the integration of the new 3Ds of
security mdash development diplomacy and defense
mdash may prove to be valuable in addressing security
challenges more effectively The counter-piracy
efforts in the Horn of Africa and the situation in
Sahel demonstrate that the role of internal security
actors dealing with border management the
rule of law or security sector reform in building
the capacities in third countries is an important
component of the discussion But at the same
time it needs to ensure that the full respect for theexisting international laws and norms for instance
those enshrined in the International Convention on
Civil and Political Rights are fully respected
Multistakeholder Approach
Security increasingly becomes a multi-stakeholder
process It is no longer purely a matter of law
enforcement but increasingly of arranging relations
between private sector or citizens and governments
Cities regions and local communities all become
important players in the process The expanding
competencies of JHA agencies (Frontex Europol
Eurojust EASO CEPOL eu-LISA) also calls
for more streamlining and coordination with
other actors across organizational cultures (ie
development-security civil liberties-security)
Engaging citizens requires convincing them thatmore security does not necessarily mean less
freedom Finally the shifting international context
also implies that the list of strategic partners
and regional priorities needs to better reflect the
evolving international context This shift toward
more networked forms of security governance
opens the space for network politics whereby
members of a network attempt to affect the policy
process and outcomes through promoting their
own ideas It is through the prism of the network
politics that both deadlocks and enhanced decision-
making capacities can be better understood
In some instances it may enhance learning
processes among actors and build trust leading
to the emergence of informal policy instruments
But certain decisions about the functioning of a
network might also enhance the conflicting aspects
of policymaking leading to deadlocks or obstacles
in the process
Ethics Civil Liberties and Human Rights
Despite advantages they may offer security and
surveillance technologies raise many questionsabout the ethical aspects of their use and their
impact on society and its values including
accountability and transparency human dignity
and good governance The use of biometric
identifiers profiling (officially governments
C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155
S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512
deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13
The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512
deny using profilingtechniques) and
sharing information
between immigration
intelligence and
law enforcement
agencies led to
protests from data
protection advocates
The Orwellian vision
of ldquoBig Brotherrdquo
controlling our
every move becameeven more real with
Edward Snowdenrsquos
revelations about the
scope of surveillance
programs managed
by the United States
National Security Agency At the same time the
uncertainty surrounding the use of UAVs by
governments for surveillance purposes and their
impact on privacy highlight the challenges for
existing legal frameworks The dual nature of
UAVs which can also be used to strike militarytargets further complicates the assessment of this
technology Transatlantic Trends 2013 reports
that 71 percent of Americans approve of using
drones to find or kill suspected enemies in places
like Afghanistan or Pakistan while 53 percent of
Europeans disapprove In addition to ensuring
that the use of drones complies with existing
legal frameworks and ethical standards it is also
necessary to take measures against possible abuse
of these technologies that could adversely influence
the level of public trust Human rights groups are
also skeptical about the humanitarian nature of
systems like Eurosur which lists saving migrants
in the open sea as one of its objectives With regard
to the policy development process itself a broad
reliance on transgovernmental informal networks
between US and European policymakers (eg Task
Forces High-Level Working Groups etc) raises
the question about legitimacy and transparency
given that these networks operate beyond any legal
mandate provided in the treaties
Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation
Cross-cutting
issue
Speed bumps Accelerators
Developmentdiplomacy anddefense
bull Militarization andsecuritization of discourse
bull Limited resourcesbull Divergence of prioritiesbull External shocks
bull Vision and willingness tocooperate
bull Trustbull Support from recipient
countries
Multistakeholderapproach
bull Turf wars and limited cross-agency cooperation
bull Network politics Ideologicalapproaches (ie anti-Americanism)
bull Political calendar
bull Enhanced legitimacy andtransparency
bull Improved cross-agencycooperation
bull Early warning and dialogue
Ethics civilliberties andhuman rights
bull Abuse of power andmechanisms
bull Unethical policies andinstruments
bull Respect for rule of law andhuman rights
bull Transparency and legitimacy ofthe process
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13
The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13
The security
environment is far
static and the evol
of threats constant
challenges governm
to catch up in their
policy response
Transatlantic cooperation on bordermanagement does not take place in a vacuum
Hardly any other EU partnership is under
such a detailed scrutiny Given the high density of
transatlantic integration in many policy areas this
is both a blessing and a curse The past decade of
transatlantic homeland security cooperation mdash
with border management policies as its foundations
mdash was particularly intense
Even though there is a lot of truth in opinions
characterizing the presidency of George W Bush
as one of permanent conflict it was also a periodwhen EU-US cooperation on security issues
advanced most and when the foundations for
transatlantic dialogue on security were laid down
The governance of the relationship moved from
formal inflexible and mostly diplomatically
restrained hierarchical structures established in the
1990s towards more informal flexible and cohesive
informal networks operating across national
borders and leading to the emergence of unique
coalitions across the Atlantic The information
exchange function of networks was complemented
with the early warning function while hierarchicalsystem of connections tailored for reporting
monitoring and steering was substituted with the
one allowing for better exchange of information
and deliberation The emergence of homeland
security networks was also driven by an increasing
desire of policymakers to bring the discussions
outside of the political context provided by formal
negotiation teams This was for instance the
case of the High Level Contact Group on data
protection which sought to find synergies in
European and US approaches to data protection
rather than in proving the supremacy of one overthe other
However the security environment is far from
static and the evolution of threats constantly
challenges governments to catch up in their
policy response At the same time regulatory and
institutional differences across the Atlantic arelikely to complicate cooperation in this area The
controversies surrounding Snowdenrsquos revelations
have demonstrated how fragile the relationship
really is This leaves the EU and the United States
with three options representing different levels of
ambition continuing along the same trajectory
addressing the problems in a more proactive way
or attempting to find a new big transatlantic idea
(see Table 2)
Scenario 1 Business as Usual
The main framework for transatlantic bordermanagement cooperation was established during
the two successive Bush Administrations (eg
the conclusion of three PNR agreements the
agreement on mutual legal assistance Terrorist
Finance Tracking Programme) The high level of
ambition that dominated that period was sadly a
consequence of the September 11 2001 terrorist
attacks in the United States Even though the
agenda was initially determined by unilateral
US actions the commitment to resolving the
conflicting issues has driven both EU and US
officials (even though issues like visa reciprocity
between the United States and some EU countries
remain unresolved)
More than ten years later the EU and the United
States are dealing with the hiccups of the Bush
era albeit with much less determination The
agenda is still dominated by the discussion about
the exchanges of personal information for law
enforcement purposes The trust between both
sides is probably at its lowest especially after the
NSA secret surveillance programs became a subject
of debates in major media outlets There are also
those in Europe who made attacks on the US
policies part of their political agenda In the United
States the debate has unfolded along the traditional
and simplified lines defined as security versus
freedom unfortunately embraced by US President
S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150
6
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514
Barack Obama While controversies are piling upthere is nowhere to look for solutions with each
side focused too much on solving its own problems
It is worrying therefore that very little progress
was made to prevent conflicts from occurring or to
minimize their impact One area where cooperation
is moving forward is the fight against cybercrime
marked by the establishment of the EU-US
Working Group on Cybersecurity and Cybercrime
But given the speed with which the international
security environment evolves and at which threats
multiply sticking to this approach focused only at
dealing with issues at hand might have negativeimplications for the resilience of transatlantic
security architecture in the long term
Scenario 2 Patching Up
A slightly more ambitious option would be to
seriously approach the problematic issues deal
with the structural problems at hand (eg legislative
and regulatory divergence clarifying the concepts
and language etc) and introduce resilience into
transatlantic policymaking The early warning
approach that previously prevented many potential
problems from erupting needs to become a part
of the transatlantic DNA But the transatlantic
framework also needs to be able to ldquobounce backrdquo
when it gets temporarily upset by revelations
like the one about the NSA secret surveillance
program In that sense resolving the ongoing
debates on the EU-US agreement on personal data
transfers visa reciprocity or travel facilitation is
long overdue This however is unlikely to happen
in an immediate future dominated by the debate
about appointments for the EUrsquos new top leadership
and the mid-term elections in the United StatesIn medium term a patching up approach might
keep both sides afloat but will not send the strong
political message that this relationship requires
In that sense the on-going negotiations of the
Transatlantic Trade and Investment Partnership
represents a missed opportunity to embrace a
broader security agenda with regard to mobility ordigital economy
Scenario 3 Big Idea
The main problem with the EU-US homeland
security cooperation mdash and probably one of the
reasons why the patching up scenario is most
realistic for the time being mdash is that it lacks a
common purpose and vision The EU-US dialogue
on security issues is not driven by a specific
strategic objective but rather by the accumulation
of individual aims determined by current domestic
concerns Consequently the United States leads thedebate on security and the EU on values mdash none
of which are in fact conflicting but which give the
impression of a broadening division across the
Atlantic What is needed therefore is defining a
purpose for EU-US cooperation mdash not separately
but jointly Why is it important for EU and United
States to work together
The answer to this question needs to go beyond
the common evocation of the attachment to the
same values or the need to face a common enemy
These can be too easily dismissed What the EUand the United States need is to take a step back
and look at the drawing board with a fresh eye The
EU Area of Freedom Security and Justice did not
emerge overnight but is an outcome of the process
that took decades to conclude In a similar vein the
discussion about Transatlantic Homeland Security
Community mdash with all its dimensions such as civil
liberties law enforcement and the rule of law mdash is
long overdue The idea of creating a ldquotransatlantic
common spacerdquo was suggested already in 2008
by the Informal High-Level Advisory Group on
the Future of European Home Affairs Policy (the
Future Group) but fell on deaf ears The debate
about the next multiannual justice and home affairs
program provides a good opportunity to revive
this subject One format to consider could be the
establishment of a joint EU-US homeland security
The early warning
approach that
previously prevented
many potential
roblems from erupting
needs to become a
art of the transatlanticDNA
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820
S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
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8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15
institute mdash either as a body or a consortium that
brings together major stakeholder from both
sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis
undertaken by particular teams in such an
institute would provide the background and feed
discussions between US and EU policymakers
based on facts and objective analysis rather than
political analysis alone It would also provide a
more comprehensive assessment of the challenges
and policy responses as opposed to the piecemealapproach prevailing at the moment (ie individual
studies are commissioned but the linkages
between them are hardly explored and taken to
the next level) Such a structure would also closely
cooperate with other stakeholders including the
Table 2 Different Scenarios for Transatlantic Border Security Cooperation
Level of
AmbitionLow Medium High
Scenario
Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant
Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account
Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention
Areas of
Cooperation at
Global Level
bull Counterterrorismbull Aviation security
bull Promotion of the BudapestConvention model
bull Risk-based model in bordermanagement
bull Capacity building in thirdcountries security sectorreform border missions
bull Global rules on privacy andsurveillance
Areas of
Cooperation at
Transatlantic
Level
bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and
extradition agreementbull Cybercrime
bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme
bull Information exchangeincluding between lawenforcement agencies
bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice
Individual
Efforts
bull Border management projectsunderway (eg Mexico in theUnited States smart borders
in EU)
bull Investment in research andcapabilities
bull Investigation of obstacles tocooperation
bull Political support fornecessary changes to
domestic legislation
Speed bumps
bull Network politics
bull Unethical policies and instruments
bull Militarization
bull Limited resources
Accelerators
bull Trust
bull Transparency and legitimacy of the
process
bull Respect for human rights and rule of
law
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
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T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920
T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516
Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement agencies This solution could help to
take the discussion out of the political context and
focus primarily on the content A new initiative at
the political level is even more pertinent given that
transatlantic relations are not among the priorities
for think tanks in particular in the United States
The discussion about EU-US cooperation on
border security management is far from over
mdash not because there is little will to resolve the
problems but simply because the problems will
keep coming up The ongoing negotiations of the
Transatlantic Trade and Investment Partnershipprovide an opportunity to address some of those
questions in particular concerning the potential
benefits of transatlantic mobility and challenges
to its implementation Looking into the future it
would be a mistake to insist on a full conversion
of European and US approaches to border
security There is a lesson to be learnt from the
past and current debates collectively the EU-US
partnership becomes stronger each time the United
States exposes the weakness of European muscles
and when Europeans act as a US conscience
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg
8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management
httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020
O F F I C E S
W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155
wwwgmfusorg