Common Interests, Uncommon Responses

Last month, Jan Philipp Albrecht, Member of European Parliament (Greens/EFA) and rapporteur for the EU’s Data Protection Regulation stated, “There is an urgency to build a common interpretation of national security.  It is on our common security interest.” 

It caught my attention because I have been writing about the correlation among threat perception, counter-terrorism, and data-sharing.

It is important to build a common interpretation of national security for a number of reasons. Governments are more likely to cooperate when they share similar perceptions of a treat. However, because of their experiences with political violence, the US and EU have developed different institutions and procedures to deal with terrorist threats, which have heavily influenced their views and laws on privacy, surveillance, and data-sharing.

In short, they understand why it is important to confront political violence, but disagree about how to do so.

Today President Obama and Chancellor Merkel recognized how historical experience had produced divergent approaches to government surveillance. Mr. Obama stated, “Given Germany’s history, there are going to be sensitivities around this issue…There are going to be irritants like there are among friends.”  Merkel concured, “There are still disagreements on some points.” [Es gibt da nach wie vor unterschiedliche Auffassungen in einigen Punkten.”]

First, neither the US nor Europe will be able to completely alter the way they confront terrorism because their experiences have produced different methods and institutions to counter these threats.   (And even here we cannot lump Europe into one EU basket either.)

Second, the US and European have little choice but to get along because of the transnational nature of the terrorism.   Their differences, however, have not halted data-exchange among intelligence and police networks.  That’s also because there’s a shared sense of purpose and duty among these groups across the Atlantic. There are numerous examples of bilateral and multilateral cooperation, but the one that comes easily to my mind is the Terrorist Finance Tracking Program, TFTP.

To me, the TFTP, Safe Harbor, (and even the limited SIGINT reform) demonstrates something else – that cooperation on the collection and transfer of transatlantic data (both public and privately held) is slowly (and painfully) producing a hybrid system that takes the histories, values, and institutions of the US and EU into account.

Whatever the result, it’s going to be bumpy ride, and sure to displease everyone.

 

 

A Note on Extraterritoriality

“Extraterritoriality” keeps coming up in interviews and conversations, and as I write about the legalities of data sharing I find this concept has a curious pedigree.

In some instances it is exclusionary.  Diplomatic immunity is the most often cited example, where a host country cannot prosecute foreign dignitaries’ misdeeds under local law, but in certain circumstances his/her native land will waive this right.  The term can also denote inclusion, where states claim national law applies beyond its sovereign borders citing the ‘effects test.’

In both, boundaries are defined and crossed.  They perfectly illustrate the legal and physical dichotomies in the world(s) of information communications technologies, finance, and data, which may be geographically and legally defined, yet transnational in their virtual and physical existence.  As I have been told, “Banking is local” – regulations, attitudes about money and investing reflect local expectations, but in the last 40 years the technologies and many of the staffing and services on which we depend to facilitate these relationships, are not.  This is also a problem for international organizations like the IMF that worry about interstate cooperation and enforcement in a regulatory world – “How are they [the G20] going to deal with extraterritoriality?” The suggested answer – “They only cooperate when they are scared.”  The danger is that instead of compromise and adaptation, states and corporations will resort to a tug of war mentality of interests based on strict definitions and boundaries.

Extraterritoriality asks, “Whose rules apply, to whom, and when?” It addresses setting standards and enforcing them.   In the end, I do not think that that the corporate world or governments will be entirely successful in avoiding a battle of territorialities, but I do hope that there is enough ‘fear’ to motivate them to recognize the importance of compromise to everyone’s interests. Too often, in the aftermath of crisis (whether it be the national security or financial kind) policy-makers and practitioners fall into a lull of comfort, lose sight of the big picture, and start aggressively pushing politics into areas that desperately demand practical solutions.

Next post:  Qualifying and Quantifying “Big Data” (a buzz word that I’m increasingly beginning to loathe)