Transferring Privacy

Gus HoseinRotterdam, December 2004

I would like us to abandon the idea that international co-operation is a good thing.

The Open Society

Not just an idea, but an ideal.

Want people to participate in developing policy because it informs policy.

Makes better policy.

International Co-Operation

Transfers responsibility and accountability.

Conceals policy decisions.

Imitates inevitability.

Who speaks of technological challenges?

Who addresses costs of regulation and regulatory impact assessments?

Who considers legal and social challenges?

Laundering Identification

“By October 26, 2004, in order for a country to remain eligible for participation in the visa waiver program its government must certify that it has a program to issue to its nationals … passports … which incorporate biometric and authentication identifiers that satisfy the standards of the International Civil Aviation Organization (ICAO).”

-- Enhanced Border Security and Visa Entry Reform Act 2002

“The work carried out over the next five years by the UKPS, in partnership with other Government departments and agencies, will be crucial to the fight against identity fraud, as we build the base for the compulsory national Identity Card scheme.”

- Home Office Minister, Beverly Hughes, March 31 2004

“UK passports are going to be introducing biometrics whether people like it or not, because that's the way the world is going. Within three years we will be in a position to start everyone having a biometric passport issued and along with it a biometric card.”

- Home Secretary David Blunkett, April 26 2004

Leading to VISIT

“The government has wisely decided that [all visitors to the U.S.] will be included in the recently begun US-VISIT program, which checks photographs and fingerprints against watch lists. At less than half a minute per person, it is hardly an onerous burden...”

-- The New York Times Editorial

"There is no ink involved, it's not like a booking process. It's a very simple device - kind of like ET going home, where the finger glows red."

- Bob Mocny, Deputy Director of US-VISIT,

in Guardian, September 30 2004.

QUESTION: Well, … I mean, they, the Brazilians, had enacted a rather stringent response.

MR. BOUCHER: They had a very strict requirement, one that we felt was impeding travel, and we made that clear.

-- Richard Boucher, DOS Spokesman, September 29, 2004

“We welcome other countries moving to this kind of system. We fully expect that other countries will adopt similar procedures.”

- DHS Undersecretary Asa Hutchinson

“We are in favour of these border measures generally. If there was such a requirement we would inform our citizens and it would be up to the traveller to decide.”

- U.S. Official

“We will introduce identity cards and electronic registration of all  who cross our borders.”

- Tony Blair, September 28, 2004

"This will further secure the UK’s borders by efficiently recording people travelling into and out of the UK, using airline reservation information and capturing passengers’ biometric data."

- David Blunkett, September 29, 2004

“I think it's critical that we move this along as quickly as possible, and the best way of facilitating that is not simply on a bilateral-by-bilateral basis, but to get as much multilateral buy-in as soon and as quickly as possible.”

-- Secretary Tom Ridge

TSA International Cooperation Strategy

Goal

To strengthen international transportation security practices and standards by establishing cooperative and focused relationships with

other governments at bilateral, multilateral, and international organizational levels.

Active Multilateral Efforts

Group of Eight (G-8) - U.S., Canada, Italy, Japan, Russia, Germany, France, UK

European Union – 25 Member States with Bulgaria, Romania, Turkey in future

European Civil Aviation Conference – 38 Member States

Asia Pacific Economic Cooperation – 21 Member Economies

Latin America Caribbean Commission – 21 Member States

“All of us must look for ways to remedy deficiencies in legal, financial and enforcement tools: …

• Legal or technical impediments to closer cooperation among countries on intelligence and information exchanges must be removed. The EU and its member states need to re-examine fundamentally the ways in which strict privacy laws can impede the sharing of information for law enforcement purposes.

• EU member states need to accelerate efforts to complete bilateral agreements with the United States to implement the U.S.-EU Extradition and Mutual Legal Assistance Agreements.…

Differing legal, cultural and historical traditions and practices will complicate the process. However, there is no doubt that all us are increasingly aware of both the threat and the deficiencies that limit our abilities to address it.”

- William P. Pope, Principal Deputy Coordinator for Counterterrorism, September 14 2004

Laundering Travel Surveillance, Defending Privacy Invasion Against

Privacy Law

Foreign carriers “shall make passenger name record information available to the Customs Service upon request”.

The availability of this information was deemed necessary for purposes of “ensuring aviation safety and protecting national security.”

- Aviation and Transportation Security Act 2001

EU-U.S. ‘Negotiations’

IssueU.S. Law Requirement

Original U.S. Demands

EU Privacy Requirements

December 2003 Agreement

Purpose

'ensuring aviation safety and protecting national security'

'serious criminal offences'

Proportionality: Terrorism and serious related crime.

'Terrorism and related crimes' and to 'other serious crimes’

IssueU.S. Law Requirement

Original U.S. Demands

EU Privacy Requirements

December 2003 Agreement

Access

'carriers shall make passenger name record information available to the Customs Service upon request.'

On-line access to Airline databases to 'pull' whatever information they wish. Includes non-U.S. travel.

Must be limited to what is strictly necessary. Sharing only upon consent.

‘Push’, possibly through a centralised EU institution. Reciprocity for the EU?

“As a matter of fact, I can even see that a centralized structure inside European Union will be able to provide the necessary guarantees on the liability aspects, the accuracy of the data on the security of transmitted data, the technological means and the filters…, on the supervision by adequate control mechanisms, above all the role of the giant supervisory board and for offering added value to similar initiatives conducted at national levels within the European Union.”

-- EU Justice and Home Affairs Commissioner

“The EU cannot refuse to its ally in the fight against terrorism an arrangement that Member States would be free to make themselves.”

“The agreement with the US appears to be a sound basis for taking forward work on an EU approach (…). The list of data elements also seems broad enough to accommodate law enforcement needs in the EU.”

In International Policy Making…

We can’t trace the source of ideas.

Uninformed policies are developed without regard to implications such as costs and civil liberties.

So long as we see international co-operation as a good in itself, and continue with our technological deterministic attitudes, it will all seem so inevitable…

http://is.lse.ac.uk/staff/hosein

http://www.privacyinternational.org/

gus@privacy.org