Obama Administration Grants Europeans Rights Americans Don’t Have

You know what happens when your elected representatives fight for your privacy? Counterterrorism investigators actually grant you some!

At issue is SWIFT–the database that tracked most international money transfers which the Bush Administration mined in its counterterrorism fight. When SWIFT’s server moved to the EU, the US tried to demand the same access as it had had previously. But the EU Parliament–strengthened by the Lisbon treaty–rejected the terms the US initially demanded. And as negotiations went on, the EU insisted on safeguards for its citizens.

Well, the EU finally signed an agreement with the US, and here are the protections the EU won for its citizens (h/t LES):

Elimination of bulk data transfers

The key to the deal for Parliament was the eventual elimination of “bulk” data transfers. In exchange for backing the agreement, MEPs won an undertaking that work on setting up an EU equivalent to the US “Terrorism Finance Tracking Program” (TFTP), which would preclude the need for bulk data transfers, will start within 12 months. Once Europe has a system enabling it to analyse data on its own territory, it need only transfer data relating to a specific terrorist track.

A new role for Europol

Another innovation of the new agreement is that it empowers “Europol”, the EU’s criminal intelligence agency based in The Hague, to block data transfers to the USA. Europol will have to check that every data transfer request by the US Treasury is justified by counter-terrorism needs and that the volume of data requested is as small as possible.

An EU representative in the USA to monitor data processing

The new version of the agreement also provides that the use of data by the Americans, which must be exclusively for counter-terrorism purposes, is to be supervised by a group of independent inspectors, including someone appointed by the European Commission and the European Parliament. This person will be entitled to request justification before any data is used and to block any searches he or she considers illegitimate.

The agreement prohibits the US TFTP from engaging in “data mining” or any other type of algorithmic or automated profiling or computer filtering. Any searches of SWIFT data will have to be based on existing information showing that the object of the search relates to terrorism or terrorism finance.

Right of redress for European citizens

In February 2010, MEPs demanded that under any new version of the agreement European citizens should be guaranteed the same judicial redress procedures as those applied to data held on the territory of the European Union. The new proposal says this time that US law must provide a right of redress, regardless of nationality.

Data retention and deletion

Extracted data may be retained only for the duration of the specific procedures and investigations for which they are used. Each year, the US Treasury must take stock of any data that have not been extracted, and hence individualised, which will no longer be of use for counter-terrorism purposes, and delete them.  Such data must be deleted after five years at the latest.

There will be two checks–at the Europol level and via an EU representative working in the US–to make sure the data is being accessed appropriately. Within a year, Europe will assume the role the US is now playing. And the agreement at least grants redress in court and limits on data retention (though like those in Europe who opposed this deal, I’m skeptical of the efficacy of these requirements).

That’s more than we American citizens get under some of the provisions of the PATRIOT Act.

Then again, some of our representatives tried to win greater protections for US persons last year. But short of doing what the EU did–withdrawing US access to the data–Congress was unable to win concessions from the Administration.

  1. BoxTurtle says:

    ObamaLLP probably plans to quietly break those promises the first time they feel the need to do so.

    IMO we’re not going to get much more out of following cash transfers. The stored value cards can be carried in a wallet and disguised to look like anything but a credit card. If I’m a terrorist, I’ve switched to those.

    I’m glad the patriot act passed when it did, congress has gotten even more spineless since then and would probably require cameras in our homes if ObamaLLP said it was needed to fight terrorism.

    Boxturtle (or the war on drugs)

  2. bobschacht says:

    Good catch! Golly, do you think our congresscritters might rise up and demand that we Amerikans get the same rights? I’m “looking forward” to that.

    Bob in AZ

    • BoxTurtle says:

      The congresscritters wll compromise. Rather then extend protections to all Americans, they’ll limit it to elected and appointed officals and their staffs.

      Boxturtle (They will have learned from Jane Harmon)

  3. earlofhuntingdon says:

    Europe had an obligation to impose such restraints on its American ally, if it wanted to uphold its own data protection laws, but it took the EU parliament to say so. Individual EU governments didn’t want to say no to the American bear.

    As with labor and environmental laws, American governments and businesses don’t take data privacy laws very seriously even when they are on the books. We intentionally have nothing approaching the EU data protection regime – we don’t need it is the clamor, the free market decides who owns our private data (businesses, not individuals) and what data is worth protecting (the government’s and businesses’, not individuals). We might change that, if we tried hard enough.

    • emptywheel says:

      Well, and to be fair, the Green Party objected because this doesn’t meet Europe’s data protection rules.

      It’s still better than what we’ve got.

      • earlofhuntingdon says:

        Oh, absolutely. I agree with your point, implied in your title, that we ought to have the same or similar rights over our own data, not just in the way it’s shared with foreign governments.

        • BoxTurtle says:

          The government should have to get a warrant to access individual data. Period.

          I accept that the government needs access to some data, if only for tax purposes. I accept that the govenment can monitor cash flows across the borders. I accept that they can pry into a non-us citizens data with almost no restrictions, though I don’t like it.

          But this data seems like an addictive drug to our government. They’ve got it, they can’t live without it, and they want MORE. Technonlogy has outpace the law again, but our government seems to like it that way.

          Thought experiment:

          1) Assume a government program exists that basically sucks up every phone call and stores it.

          2) Assume that a computer program goes through the phone calls metadata (source, target,location, etc) looking for terrorist connections.

          3) Assume a different computer program scans the phone conversations looking for keywords.

          4) Assume that a third program takes he results of the above and routes the calls metadata to human beings for further examination.

          5) Assume that the human being then listens to those calls he feels deserve a closer check.

          Problem: At what point in the above should a warrant be obtained?

          Boxturtle (You can read the current law to say not until step 5)

          • earlofhuntingdon says:

            EU data protection rules contain exemptions for such things as national security and police and judicial cooperation in criminal matters. While the exemptions are potentially vast in scope, decisions regarding them are subject to more oversight than here.

            • BoxTurtle says:

              When do they have to get a warrant?

              Boxturtle (And will their legislatures exercise or avoid their oversight duties?)

              • earlofhuntingdon says:

                I don’t know. I think even item #1 is problematic, because gathering and searching that all-encompassing telecoms data on the off chance that some miniscule percentage of it might lead to some criminal behavior once, twice, thrice removed, to me is a violation of the Fourth Amendment.

                • BoxTurtle says:

                  Ah, but no human is even aware of what’s been checked until step 4. Can a machine violate your privacy?

                  The laws were written before a machine could do anything more than record on tape via a landline. We need the laws updated to deal with current reality.

                  Boxturtle (Either that, or the feds need to get a blanket search warrant covering everyone)

                  • earlofhuntingdon says:

                    Oh, machines can violate your privacy and do so all the time. Having the data is almost as intrusive as the government’s staff and outsourced contractors actually looking at it. Besides, what individual would ever know when a secret employee or contractor actually looks at secret information secretly gathered?

                    Fear and intimidation work on the prospect of invasive behavior, not just the fact of it. That’s true whether it’s the unaddressed elephant in the emotional living room of dysfunctional family or in a real prison cell in Gitmo. Fear is what Cheney preyed upon and his successors prey upon, which engendered the practices about which you query.

    • BoxTurtle says:

      “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” – Gerald Ford

      Under that criteria, neither Obama nor Bush have committed an impeachable offense.

      Boxturtle (Nor are they ever likely to)

    • manys says:

      Judge Andrew Napolitano: Obama’s Impeachable Offenses Mount (Bush Should Have Been Impeached Too!)

      He’s not a very good judge who doesn’t know that Bush and Cheney can still be impeached.

  4. Garrett says:

    OT, and over at GOS, a tale of intrigue:

    GAP’s report tells a story about Bush administration neocons, the Iraq War, cronyism, astroturfing and an affair. Its characters include Iraq War architect Paul Wolfowitz, his romantic partner Shaha Riza, former Secretary of State Condoleezza Rice, and Vice President Dick Cheney’s daughter Liz Cheney.

    Liz Cheney’s Failed Pet Project, by Shelleyw.

    A Mother Jones article.

    A Government Accountability Project FOIA production.

    Documents behind the links, and stuff. I think the diarist is at GAP.

  5. fatster says:

    Gates is a smoothie (except when he’s not).

    Today Secretary of Defense Gates discussed a memo recently released to his guys emphasizing procedures that must be followed with dealing with the media. Gates cleverly said to the assembled reporters, “This is not about you, this is about us.” Need to tighten things and make sure what’s told to the media is accurate.

    When asked if he knew the memo had been leaked, he replied, “That was highly predictable.”


  6. fatster says:

    There are still rights to privacy in this country. It’s just that, over the last few decades, the government has acquired many of those privacy rights for itself and declared that We the Citizens have fewer.

  7. Balki says:

    This outcome does not surprise me at all. I understand that it can be viewed as a privacy issue for citizens, but we should consider who actually uses SWIFT. Pretty much all hedge fund and international corporate transactions are done using SWIFT.

    It seems much more likely to me that it was less about the EU safeguarding citizens than major corporations and financiers applying pressure to protect their anonimity. By no means am I suggesting that governments should have free access to personal data: I am just not ready to congratulate the EU for its protection of rights when my guess is that they simply buckled to banking and other corporate demands.

  8. Bluetoe2 says:

    OT, has anyone heard about a march on Washington for jobs? Heard something that unions, immigration groups and other progressive organization are sponsoring a march on the Capitol.

  9. papau says:

    I read the TFTP rules agreement as a protect the rich and their transactions agreement – nothing more.

    The intel community will still have the data – and will still do data mining – and share the results – via other arrangements. And indeed that is most likely a good thing, albeit unlikely to get anything of interest in the next 20 years. The new agreement will stop a universal world wide every countries citizen at the same time VISA database data mining – but then we currently have a problem with the 500,000 files we have not looked at with the limited manpower that is assigned to the terrorist watchlist review. Those with no experience programing and managing programing projects always assume anything can get done with the current staff size – and at half the cost estimate because we will get a contractor that will outsource to India (but promises really good security at that really low cost), firing US staff so as to not increase staff count.

    Privacy vs national security – the PR is interesting, but national security never loses the argument. Indeed suggestions on improved IT database procedures normally get the “not invented here” treatment by U S intel, unless there is political pressure.

  10. clemenza says:

    Whatever. All to keep us safe, huh? Our tax dollars at work.
    The whole War on Terror is one big cash cow, nothing more. Both foreign and domestic corporations getting multi billion dollar contracts for the latest POS gizmo or software program to keep us safe. What a farce.

    Hey, Obama, how about keeping us safe from the corporate terrorists like say, oil companies calling the shots over the welfare of Americans? We’ve got Fascist rule in the Gulf and nothing’s more important than that right now. This security crap is a giant industry now. A big, fat, Big Brother life draining leech on US taxpayers. Blowing billions for some corporate crony to get the contract to spy on everyone in the world. Surely some serious cash for this ridiculous bullshit. You can bet your ass. And you can bet your ass it will be farmed out to private industry. What a crock. They refuse serious investigation into the 9/11 funds, at least publicly, but now everyone in the world is fair game.
    Pissing more of our money away for the occasional propaganda headline for the fear campaign towards endless wars.

    But so much for keeping us safe from our own lying corporate run government. Like swearing the air is safe, Corexit is cool, and the fish good eatin’ despite massive toxins brought to you by BP. Wonder how many people’s lives will be cut short from BP’s/US gov. shit? Or the domestic economic terrorists in Congress, the US Treasury and Wall St. turning millions of American lives into dust. They’ve caused way more damage than all the terrorist attacks combined throughout the world since 9/11. Homeless, jobless, starving families can’t get a shitty 300 bucks per week unemployment but by God, we are gonna make sure every human on the face of the earth knows if the US Gov wants someone dead, call them a terrorist and that’s reason enough to kill.

  11. orionATL says:

    i have come to miss reading and commenting at “emptywheel” since exiling myself in a fit of pique some weeks ago.

    what i have discovered that i missed so much about this weblog was the diversity of it’s hostess’ interests and the often very informative responses its commenters provide.

    as i wandered thru the verdant/dry and dusty (your choice) landscape of the weblog world, i came to realize that most weblogs are one-issue (or a cluster of issues) weblogs;

    “emptywheel” is not.

    it is the remarkable diversity of issues that ew addresses and that commenters amplify or challenge that make this website sui generis.

    coincidentally, this observation is illustrated by this post and the one immediately preceeding it.

    go ahead,

    travel around the weblog world;

    see if you can find a weblog with a more diverse list of subjects addressed in its various posts than “emptywheel”.

    • skdadl says:


      I didn’t notice the fit of pique, but then I’ve been distracted for a while. I certainly understand fits of pique, though; don’t we all. I agree with everything you’ve written about EW’s place, and isn’t it great to find that you can indeed come home again?