Regulation and national security: Creating effective policies across the Atlantic
On January 23, GMF Brussels held a discussion entitled "Regulation and national security: Creating effective policies across the Atlantic." Professor Henry Farrell of George Washington University in Washington, DC, presented his draft paper (to be published by GMF in March 2008) on Information Politics in the New Transatlantic Agenda. Ms. Sophie in't Veld, a member of the European Parliament from the Netherlands, provided a response. The debate was moderated by GMF's Michal Baranowski.
Governments have a responsibility to regulate in order to protect their citizens, and this is especially important with regard to regulations that impact matters of national security. In his presentation Professor Farrell focused on a new set of privacy and data sharing issues that has emerged over the past few years and the challenges they have frequently posed for the transatlantic relationship. These new problems, such as transatlantic controversy over SWIFT or Passenger Name Recognition (PNR), are not always easily resolved through traditional transatlantic policy channels. Concerns over security, competing economic interests, and clashing obligations imposed on private actors by U.S. and European regulators, are an increasing cause of transatlantic friction. These issues are unlikely to disappear. On the contrary, they may only increase in number. While they have thus far been tackled on a case-by-case basis, a more systematic approach is now needed.
Such an approach might build on a mix of experience in the form of mutually agreed principles and institutions. Some existing ones can be adapted such as innovation, more intense cooperation across the Atlantic, better consultation procedures and involvement of data protection officials (EU), and a proper internal coordination structure on issues of information exchange and security (U.S.). In conclusion, Prof. Farrell argued that some tensions are unavoidable but providing continuity and coherence in addressing this set of problems will be absolutely critical in moving from crisis-driven policy-making to a more anticipatory system.
Ms. in't Veld, agreed with most of Prof. Farrell's arguments and so concentrated on adding an additional dimension to the discussion. First of all, she highlighted a problem that is less a matter of U.S.-EU relations and more a struggle between parliamentary bodies and executive branches of government over accountability as well as democratic oversight of civil liberties. The security aspect of regulation, she argued, has been getting too much attention at the expense of democratic freedoms. Issues such as the free flow of data and the uses to which these flows are put (job applications, insurance assessments) go far beyond national security issues and to the heart of the relationship between citizen and state. Moreover, the effectiveness of these regulatory agreements in providing security has not been properly scrutinized. Differences in regulatory goals are matters that are less easily bridged as in the United States, where data privacy laws focus on protecting the citizen against the government, whereas in Europe it is more a question of protection against private companies.
The European Parliament, according to Ms. In't Veld, is still a relatively weak player in these areas, but this could improve after the Lisbon Reform Treaty comes into place. However, the problem of political will in the U.S. Congress, European Parliament, and member state legislatures, remains fundamental and stands in the way of some of Prof. Farrell's proposed solutions. The private sector has a huge stake in the matter given the financial cost of obligations, but is also relatively absent from these discussions. All in all, there is still a lot of work to be done on the part of all the actors involved.