EU Parliament Rejects Interim SWIFT Deal
The EU Parliament voted today–by big margins–to end the temporary deal allowing the US access to data from SWIFT.
The European Parliament on Thursday broadly rejected an agreement with the United States on sharing information on bank transfers that was aimed at tracking suspected terrorists through their finances.The vote in Strasbourg, France, underlined differences between the United States and the European Union over how to balance guarantees of personal privacy with concerns about national and international security.
A resolution to reject the deal passed 378-196, with 31 abstentions. The vote means that the agreement, which provisionally went into force at the beginning of February, cannot be used as planned.
The agreement would have freed the United States from having to seek bank data on a country-by-country basis. But Washington still could press for access to the data through such avenues.
Remember, this deal would have given European citizens more protections than Americans currently get from their banks (because it would have allowed them to check whether their data had been accessed).
This rejection also comes just as the Administration, following yesterday’s release of language concerning the treatment of Binyam Mohamed, is making a show of complaining about information sharing.
On Wednesday, the White House said, “We’re deeply disappointed with the court’s judgment today, because we shared this information in confidence and with certain expectations.”
Dennis Blair, U.S. director of national intelligence, condemned the release of the information.
“The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies,” he said. “The decision by a United Kingdom court to release classified information provided by the United States is not helpful, and we deeply regret it.”
Obviously, particularly following the Undie Bomber attempt, the Administration is going to do anything it can to continue sharing information, both on detainees and data analysis. But it’s going to have to start playing well with others to do so.
over at Cspan.
Coverage of the British discussion of the torture of Binyam Mohamed
http://www.c-span.org/Watch/C-SPAN.aspx
Your first link, to the article, goes to the Kelley Blue Book.
Also, the English language articles and reports fail, unlike the GErman media, to note that the US engaged in an unprecedented level of lobbying the EU parliamentarians, seeking to get their approval. As I noted in an email early this morning (shortly before the voting started),
Apparently, the EU MPs figured out that lobbying (At least without campaign cash deliveries) was something they could safely ignore. There’s an old saying: “if it needs a hard sell, it isn’t worth buying.” The EU MPs can still follow that rule.
Thanks.
And in a later report, German radio reports that the EU parliament has tossed the SWIFT agreement with the US
EU Parliament tosses [into the trash can*] the SWIFT agreement
The EU Parliament has stopped the controversial bank data agreement with the USA. The decision came down by a decisive majority. The agreement should have already come into effect on February 1. It would have given the USA access to the data passing through the financial service provider SWIFT, which would have helped US investigators develop worldwide patterns reltive to accounts. US investigators wanted to use that to track all money transfers by criminals and terrorists. Privacy advocates warned that this would have, as a practical matter, given the US uncontrolled access to the account data of all EU citizens.
* The verb “kippen”, “to tip”, is used colloquially to mean “toss” as in “toss in the trash”.
Der Speigel has been highlighting the US pressure on this rather strongly, both today and (at the internal link below) last week:
Well, this vote is not something which wil stop the US from trying. Their friends in the Euro-government promise to keep trying to give the US what it wants.
More from Deutschlandfunk, their rough equivalent to NPR:
In translation:
I think the “intensity” of the lobbying effort Peterr notes @ 5 above has been understated in the English-language media. The earlier German radio report, which I listened to prior to the vote, was one of those we’re familiar with where the anchor talks to the specialist beat reporter and they give you a lot of detail and the reporter’s impressions. Unfortunately, the report was not put up in text on their site and likely will not be podcast.
In short, the beat reporter repeatedly noted the “Lobbyarbeit” (Lobbying work) – probably 6 or 8 times in the 3-5 minute report – and stated that while this sort of thing was commonplace on Capitol Hill, the EU Parliament had seen nothing like it. There was a distinct tone in the report that the Parliamentarians were offended by the lobbying push, but that it was having an effect in moving the more conservative parliamentarians toward voting “Yes”. Indeed, the early report used the term “knapp” to describe the expected result, “knapp” meaning “close”, “narrow” or “near-run”, although they did expect the “no” side to win. I think the size of the majority surprised a lot of people.
The EU Parliament rejected the deal, in part, because in its opinion, the deal failed to comply with EU rules regarding the protection of personally identifiable information. Those rules include advising the data subject – the person whose data is at issue – what information is being collected, by whom, for what use and for how long. They require an opportunity to verify its accuracy, challenge discrepancies and a right to demand that wrong information be corrected. The rules cannot be waived by contract. They include fines and penalties for serial or egregious failures to comply. Each member state has a data or information commissioner responsible to the public for the application of those rules. Interpretations can be challenged in state courts and by referral to EU courts.
Imagine the legal and financial consequences for the US government, if comparable standards applied to the US “no fly” list, which is riddled with duplicates, wrong names and other misinformation.
EU rules also require, by the way, that competent virtual and physical safeguards protect personally identifiable information and provide that the holder of such data obtain equivalent legal commitments from anyone – foreign or domestic – to whom that information is passed. The latter would include the US government and its plethora of private “security” and “intelligence” contractors.
There are exceptions to those rules for law enforcement and national security purposes, but the general tenor of the rules requires that such exceptions be reasonably limited and that foreign states to whom such information is given provide protections comparable to those applicable in the EU.
The US’ extensive outsourcing alone should give EU administrators and politicians cause for concern. Who knows what standards apply to them, and what purported “anonymization” rules would allow such information to be used commercially.
More generally, the US government abhors such limitations on its discretion and that of private firms to use personal information in any profitable manner. It spent years negotiating a watered down level of commitment so that US multinationals could receive and process information from their own EU-based operations and customers. Which means that it would be difficult, at best, to distinguish the US’ position as regards exceptions to these rules for law enforcement and national security purposes from its long-held position that such protections not apply to US corporations.
The EU Council and Commission disagreed with the Parliament and signed off on these arrangements. The more politically vulnerable Parliament has now said it wants higher standards. My guess is that there is plenty of room to improve practical protections for the people whose data is being sent to the US en masse, while still increasing the security of both US and EU citizens.
The obvious question is why such standards don’t apply here when, like universal health care, these or similar standards apply elsewhere in the developed world, from Canada to Japan to Australia.
This vote by the EU Parliament happened now partly because it only recently obtained the power to reject such agreements.
The old rule was that the Council (comprised of politicians from each member state) proposes and the Commission (permanent bureaucrats) disposes. That meant the Council had first to authorize the Commission to do something, and the Commission had sole authority about how to do it, subject to the final deal being accepted by the Council. Giving the Parliament a binding voice was meant to increase the democratic representativeness of EU institutions.
How ironic that the Parliament for an “old” Europe, with its national legacies and trailing liabilities, is learning a new trick that the American Congress no longer wants to perform.
To @5 and @6, thanks for the cites. Two other big sticks seem to be in the Parliament’s eye. One, is the asymmetrical intelligence-warfare the US is practicing. It wants all EU bank data, but has been unwilling to exchange similarly detailed, voluminous information with the EU. Sauce for the goose and all that would suggest that such massive data transfers ought to benefit both parties’ national security comparably. The other is that Parliament, now flexing its own new muscles, is unhappy with past EU and US arrogance toward the civil rights of EU nationals.
It wouldn’t hurt if it took guys like Gingrich and McConnell head on and said that their irresponsible rhetoric that the US shouldn’t “give” rights to any non-US citizen (and not all of them) prevents our allies from being able to work with us because their citizenry rejects subjecting itself to the kind of lawless, nomansland that McConnell and Gingrich espouse.
Call ’em out – point out that the end result of – albeit incorrect – chest thumping and crowing that America doesn’t “give” rights to non-American in our courts and administrative system is that we end up with allies who refuse to work with us on a “your peoeple have no rights and no legal protections” basis.
BTW – it’s hard to understand why Main Justice opted out of this lawsuit …
http://www.nytimes.com/2010/02/11/us/11suit.html
BlackXe, prostitutes, double billings, etc.
In the car last night, our family was discussing the US response to the UK irt the Binyam Mohamed torture docs and evidence.
Our oldest, just simply disgusted with the US response, said, “It would have been nice to send out a response in keeping with our responsibility to the Geneva Conventions. Something like, ‘In light of the latest news shared by our treasured ally, it is imperative that our country investigate such charges in order to honor our responsibilities as a signatory of the Geneva Conventions.'”
He went on about how a good democratic friend, like Great Britain, would participate in such admonishment of a fellow friend with regards to human rights violations and concerns of justice.
He mumbled something about a national 12 step program for human rights violations, “You know, something like the Nuremberg trials,” he said.
You’re bringing up your kids right. I have a hard time getting any of my relatives to react to any of this stuff.
Bob in AZ
Thanks. I have been telling him to start a blog. He has a voice.
We responded to him with the following:
“Hey kiddo, you are spot-on. We will be emailing your resume to the President and Hillary Clinton. It appears you have a better grasp of US and world history and a stronger skill set to write diplomatic responses than anyone in the White House or State Department.”
If the additional torture pictures had been published, more people might have had a bit of reality therapy. Kind of a, “Hi, my name is The United States of America and have have a problem.”
The return of son of klynn! *grin*
Son of has commented here before, hasn’t he, klynn? I’d love to see him writing.
Yep, he has commented here a few times. *g*
BTW, Thanks for your comments here the last few days skdadl. I enjoy your blog.
I suggest calling his blog “Curse Of The Filipino Monkey”.
Would you mind posting a link to your blog? Just to save digging for it … (I hope this doesn’t break blogospheric social conventions.)
You can get there, btf, just by clicking on my handle. It isn’t my blog; I am but a lowly servant of teh boss, who is much smarter, faster, more prolific, and more articulate than I, his humble admirer. (He often reads here, too.)
Doh. Thanks. (So *that’s* what that ‘site’ field in the sign-on screen does. (I guess.)
Here it is.
OT – CNET is reporting that the Obama Administration is pushing for government tracking of cell phones, because we have no expected right of privacy. http://news.cnet.com/8301-13578_3-10451518-38.html
Thanks DeadLast. One of my biggest concerns about the tracking, in addition to violating privacy in general, is that it just increases the parameters for identity theft. Knowing where someone is located, when placing calls, also means knowing when to look for open opportunity for identity theft. When I was a victim, I was amazed at the statistics which showed a high rate of identity thieves are working with different institutions where your information is accessible.
That “no expectation” claim is a circular, self-referential argument. The more private firms and the government abuse that privacy and make grandiose claims, the more they claim that “we” have no legitimate expectation of privacy. It makes for a lot of money: billions, for example, just in cable companies’ claims that they own and can use your individual cable viewing and telephone call patterns. Never mind government abuse surrounding the collection and use of such data.
Thanks scribe and EOH.
It’s worth noting that even the NYT report (which tries to make it sound like there was some one-time emergency sharing of info with the US right after 9/11 instead of a five year program of warrantless violations of law) notes that the US could be storing European info for up to 100 years, so that whether it was *used* now or later and under what then existing agreements all becomes very problematic.
All of which makes me think of the snarfing up of info by NSA in the TSP and presumable mass storage for latter hacking and use.
EOH- since you seem to know a bit about the European privacy laws/systems, do you have any take on what rules apply to the telecoms operating in those countries? I’ve always been mystified that the US lawmakers have gone around arguing that telecoms (operating in foreign countries) should provide the US with foreign to foreign communications with no warrants. To be honest, I’ve pretty much thought that – maybe even more so than the FISA penalty issues – was a part of the paranoic defensiveness about describing any part of the program.
It’s one thing to blather about how, despite the foreign agent limitations in the FISA language and the older court cases, those “foreign to foreign” calls have no “rights” under us law and don’t require any kind of warrant whatsoever, but it’s something else to say that those calls and emails are being obtained through telecoms (not snatched out of the air like old style wave communications) and their participation and cooperation and those telecoms are “doing business” in those same “foreign to foreign” places that we say have no “right” to privacy.
I think if the State of Mass required ATT to provide all info on non-Mass calls to its Governor or his hundreds of appointees, without a warrant and without any law or oversight, people in Indiana and Maine and Kentucky etc. would expect their governments to have a talk-to with ATT. I’ve been very puzzled that, from Canada to India, no one seems to be pushing their govs to discover what private citizen info the telecoms have made available to the US without a warrant and even without any probable cause to believe there was any kind of criminal activity – – and to find out what kind of intercepted communications are being stored for who knows how long, just waiting for the next Chinese hack.
Law enforcement agencies in the UK have restrictions on the collection of telecoms data, but new laws over the past ten years and a few court cases permit driving lorries through some of them. An older case, for example, permitted the police to pick up and use data from a home phone where the handset was connected to the base unit by radio – the typical kind of modern connection. They were not permitted to pick up such data without a warrant where the phone-handset connection was wired, a kind of connection that is almost antique.
I believe, for example, that restrictions still apply where the information is intended to be used as evidence in court. Even there, the protections are fewer than is ostensibly true here. In the UK, the police could not directly use evidence garnered through non-compliant means, but could use such information to obtain other, further evidence through compliant means and use that evidence in court. That is, the poisoned fruit itself couldn’t be used in evidence, but the rest of the tree was fair game.
The UK parliament has passed a series of draconian laws over the past ten years that vastly increase police powers, so my observations may be dated. In general, I think the Germans still have considerably more formal protections, the French and Dutch are somewhere in between. Where national security is concerned, as opposed to what used to be considered normal criminal investigations, I think the only rule is that there are no rules.
The EFF and EPIC, here, and Privacy International in the UK periodically provide updates and trend analysis on these issues.
That’s very helpful, but I guess in general what I’m wondering about is not so much what UK police could get for a trial (e.g., UK to UK communications), as what telecoms in the UK can give to non-UK police – like Mikey Hayden (esp re: emails). Because the reason the telecoms have all these foreign to foreign communications is because they are operating in foreign countries. I have a hard time, for example, believing that the UK doesn’t have any kind of law preventing telecoms from handing over its UK customers communications (emails or voice) to a non UK actor, at least without a warrant of some kind or process of some kind. Let’s say it is not the US that ATT is cooperating with, but maybe France, or Russia, or … whichwhoever.
For example, does America take the position that ATT can turn over American to American communications to France (or whatever other country ATT via an affiliate or subsidiary or directly may be operating) because France doesn’t think that a French warrant is needed to get those “foreign to foreign” communications that are US person/corp to US person/corp?
Not so much. ATT and Verizon and multinational players are NOT extensions of the US gov. There isn’t some kind of an agreement that other countries make that IF the US in its magnamity decides to “allow” them them have access to emails and and phone service via corporations that operate on a multinational level, then the US can grab all those countries info by they have to leave the US info alone.
What has always been my question on this is, as the US and Congress has been claiming that ATT (or whatever company) can “do business” in France and Switzerland and Britain etc – either directly or by joint venturing on cables etc. – no one is saying what the French or Swiss or British rules are (or EU rules) for the turnover to the US of the French to French or French to Swiss etc. communications that all these people (even Kris from what I understood of one article he wrong) are saying don’t require a warrant under US law bc they are “foreign to foreign” (although not foreign agent to foreign agent – which was the operative element under FISA)
So just like Swift, even though it had its big mirror facility here in the US, was subject to not JUST US law (or US non-law, as Booze and Bush did their unilateral end run around law via connived “administrative warrants”) but also to the laws of the other entities (the EU, Belgium, etc.) where it was doing business and show citizens it was servicing – I just don’t see how the telecoms here don’t have an very identical problem. ESPECIALLY with the Congressional rantings that the US Executive branch has the power to require telecoms to hand over (and let NSA store) ANY “foreign to foreign” communications without regard to any kind of probable cause.
Surely there are on or two countries where the telecom or its JV partners or affiliates or subs would be in relatively big trouble if it came out that all that countries communications had been opened up and handed off for rifling through by the US exec, outside of US law.
So I’ve been puzzled that you never hear anything about this, even though we hear a bit about SWIFT.
I don’t know whether it is legal for a domestic EU telecoms provider to release data directly to the US or its military or intelligence services or their private contractors. I suspect that it is explicitly illegal, but that data could flow to US parties via national intelligence services, which obtain that data under domestic laws. Of course, the US may hack that data at will or attempt to, as it flows across land lines, via satellites, etc., and face few or no consequences for doing so, owing to the raw power of the US government.
More generally, here is a joint Privacy International and EPIC press release about the EU Parliament’s rejection of the agreement.
P.I. releases an annual survey and analysis of “leading surveillance” societies. The most recent one, using data gleaned from 2007, is here.
The US, the UK, China and Russia rank at the bottom – in a category described as “Endemic surveillance societies”. Those states conduct the greatest amount of “legal” surveillance of ostensibly private behavior. Several years ago, for example, the average tourist on a short stay in London was photographed by surveillance cameras 3000 times – at airports , railway stations, banks, bus terminals, shops, museums, roadsides, street corners. And that’s without being a special target of observation.
Canada, Germany, Italy, Portugal, and Argentina are considered by P.I. to have “Some safeguards but weakened protection”. Few states and no major ones exceed that standard.
I could see that, but the outline of the story that we have heard is pretty much that the telecoms allowed the NSA to just have access to the switches directly, with the theory being that the switches (like the US mirror for SWIFT) were here in the US. OTOH, when that theory became untenable bc you then had the issue of US citizen surveillance that was being “based” out of the US, it got a bit murkier.
In any event, I think this is something that has oddly received almost no attention. Not only should/could telecoms have been telling the US “no” because of FISA requirements, but I would just bet that under the laws of the other countries where the telecoms were providing services (voice or email carrying or storage) a telecom was not allowed to turn over info based on a foreign gov saying, LOL cat style, “all your French/Swiss/Spanish/British/etc. communications, theyz belongz to USz”
This is one reason that FISA had been drafted around the probable cause and agent of a foreign power standards.
I’ve had a really hard time understanding the silence in other countries when the US has spent years now (and by US I mean Congress as well as others in the Exec branch and DOJ) saying that the US can force telecom turnover of all foreign to foreign communications, again under this ‘furriners gotz no ritez’ approach. But the reason that the telecoms have the info to turn over is bc of their situation doing business in those other countries and I’ve never understood why there hasn’t been a SWIFT type reaction to Europe discovering that the US is claiming that it could snarf up, store, and look through at will (or maybe at a Chinese hacker’s will) all “foreign” communications accessible through the records or equipment of ATT, Google, Verizon, etc.
This has always seemed very off to me. Has anyone in Canada ever asked Harper, for example, what Canada’s position is on the ability of telecoms operating in Canada and the US to turn over all Canadian to Canadian info- without probable cause – and if there is going to be any Canadian investigation of what the telecoms did with Canadian citizen info? Or as Brown something similar, or … You see where I’m going.
This really puzzles me.
I think that’s one of the elephants in the living room no one wants to mention. Not the host government, not the foreign government who listens in, not domestic telecoms providers, not the tradmed. More than a can of worms, I think it’s the proverbial Pandora’s box of social and legal issues that are at risk as never before.
I can’t answer this with much authority since this topic scares me although it interests me. However, both the Liberal and Conservative parties here are serious continentalizers, neo-liberal in economic policy — on that turf, there’s little light between them. None of the Conservatives and few of the senior Liberals would hesitate to sell their grandmothers to the telecoms.
The Liberals organized a royal commission in the 1980s (the Macdonald Commission — note the lower-case d — that clan is always causing trouble of that sort) that was always meant to strong-arm us into NAFTA, and giving the telecoms just about anything they wanted was a major part of it. In short, we are run by compradors.
Historical equity ownership of telcos seems to be a factor in policy and law; which is to say, the category of most impactful shareholder for many telcos grew to be a labyrinth in the dereg epoch mid to late 90s. It may be that is the precise seam the current swift hassle protraction targets, speaking with respect to the then western Europe telcos as well as US, and the mid Europe emerging switches* routing importance.
Here is a link to P.I.’s latest annual report (html, with an onward link to the full report in .pdf format).
Individual companies are often caught between a rock and hard time. As those required to make SEC disclosures repeat ad nauseum, they are obligated [and claim] to comply with all applicable laws in each jurisdiction in which they do business.
That gives the US, like China, for example, a big stick when it asks a company doing business in the US for data, including data on its foreign operations. I see that one way the US hides how it uses that stick is that it can give individual companies an exception – allow them to lie by omission or comission to their shareholders – to compliance with accounting and SEC disclosure rules.
OT – JH has a post up about the Blackwater/Xe lawsuit too, focusing on the WaPo Leonig story instead of the NYT one.
http://firedoglake.com/2010/02/11/hookers-and-mercenaries-on-the-taxpayer-dime-get-your-21st-century-war-on/
Just reading along, very grateful for the expert analyses here, and so glad, of course, to see anyone getting uppity.
Legal imperative is now financial Damages-compensation payed by the U.S. for unlawful processing of personal data of more than 500 Millions of Europeans since 2001. CIA headquarters in Europe are now closely watched and
collusion with European governments and dollar-kickbacks as decision aids
deeply investigated.
Heh, and what exactly is the mechanism for obtaining these damages? I’m all for it, but don’t see how it is going to be done.
I suspect the practical impossibility of suing the US government or one of its private contractors and obtaining compensation for failing to comply with EU data privacy rules (or the variation on them that the US agreed to comply with) – which theoretical right was used as a defense for the agreement in the first place – was one reason the EU parliament rejected the agreement. A right without a practical remedy is no right at all.
Yeah, no kidding. The US has frustrated its own citizens from this kind of suit for acts done here; how in the world are foreign plaintiffs going to sue for acts that probably occurred over there? They cannot as far as I can tell, and it appears crystal clear under Rasul v. Rumsfeld, Eisentrager and Verdugo.
Hell, even for a US citizen, there is no publicly visible or pursuable way to find out ahead of time whether they are on the “no fly” list, or to correct being misidentified and placed on it. Even Congresscritters like Ted Kennedy have to piss and moan to get off it. That is arrogant, egregious and wrongful behavior one expects from a credit card issuer or credit reporting agency, not one’s government.
As for the EU rule about taking necessary and prudent steps to protect the virtual and physical integrity of the data, US compliance with that is almost laughable. How many government and bank personal computers are “lost” every month, some containing hundreds of thousands of names, dob’s, SS numbers, etc.?
As with their aversion to considering health care a civil right, rather than a personal convenience, the US and its corporations consider adequately protecting personal data a convenience, not an obligation that the failure to meet ought to lead to sanctions and mandatorily reformed behavior.
Thank you for the links – I wasn’t aware of PI.
I think it’s the elephant in the room too. I’ve been bugged by this for a long time now. *sigh*
Alien Tort Act is an example
Not against the US government it’s not. Maybe against private entities, but you would have to establish direct standing without the intermediate link of the US government; and I don’t think that will fly.
Alien Tort Act is an example
European Court of Human Rights is the next example.
Reply Summary to
bmaz February 11th, 2010 at 12:52 pm
Good. Is it just me or does it make you wonder what the “deal” was exactly in the past? How much of American citizens’ information was given to European interests in exchange? Was this kind of a one-sided deal or were you and I also part of this dealing away of individual privacy rights?