US Cheats on SWIFT Agreement with Oral Requests

I have tracked the American negotiations with the post-Lisbon EU to get continued access to the SWIFT database, the database that tracks international money payments.

Basically, after the Lisbon Treaty went into effect last year, the EU Parliament balked at giving Americans free run of the SWIFT database. The EU and US put an interim agreement in place. Which the EU Parliament then overturned in February. The US then granted EU citizens privacy protections Americans don’t have.

As part of the Terrorist Finance Tracking Program agreement negotiated between the US and EU, the Europol Joint Supervisory Body was tasked with auditing whether the US was complying with the data protection requirements of the agreement.

Back in November, JSB did their first audit; they just released their report.

The report revealed that the Americans have been submitting largely identical requests–but then supplementing them with oral requests.

The oral requests, of course, make it impossible to audit the requests.

At the time of the inspection, Europol had received our requests for SWIFT data. Those four requests are almost identical in nature and request–in abstract terms–broad types of data, also involving EU Member States’ data. Due to their abstract nature, proper verification of whether the requests are in line with the conditions of the Article 4(2) of the TFTP Agreement–on the basis of the available documentation–is impossible. The JSB considers it likely that the information in the requests could be more specific.

Information provided orally–to certain Europol staff by the US Treasury Department, with the stipulation that no written notes are made–has had an impact upon each of Europol’s decisions; however, the JSB does not know the content of that information. Therefore, where the requests lack the necessary written information to allow proper verification of compliance with Article 4(2) of the TFTP Agreement, it is impossible to check whether this deficiency is rectified by the orally provided information.

And boy are the Europeans P-I-S-S-E-D mad at the Americans for betraying the spirit of the agreement.

“As Members of Parliament we feel betrayed reading this report”, said Alexander Alvaro (ALDE, DE), Parliament’s rapporteur on the TFTP agreement. “We voted in favour [of this agreement last year] in the trust that both parties would apply the adopted agreement”, which “concerns the transfer of sensitive data belonging to our citizens”, he stressed, adding that “the credibility of Parliament and of this committee are being jeopardised. This is about trust and confidence of the public in what the EU did and is capable of doing here”.

“We have given our trust to the other EU institutions, but our trust has been betrayed”, said Sophia in’t Veld (ALDE, NL), rapporteur on the EU-US Passenger Name Record (PNR) agreements. “This should be kept in mind when they want our approval for other agreements”, she declared.

“Somehow I am not surprised”, said Simon Busuttil (EPP, MT), recalling that “at the time of the negotiations last year we were not satisfied with having Europol controlling it – we wanted additional safeguards”. He added that “the agreement is not satisfactory”, since it involves the transfer of bulk data, and insisted that “we need an EU TFTP”.

For Claude Moraes (S&D, UK), the US demands are “too general and too abstract”. He also recalled that MEPs had insisted at the time that it must be specified how the US request would be made and that they needed to be “narrowly tailored”. A written explanation should accompany each request, he added.

This agreement is not in line with Member States’ constitutional principles and with fundamental rights, argued Jan Philipp Albrecht (Greens/EFA, DE). He highlighted the problem of bulk data transfer, “which is exactly what we have criticised before“. [my emphasis]

Now, it’s bad enough that the Americans granted Europeans better data protection than they give us. And then they basically cheated on that agreement.

But think about what this reveals about their collection of our own data. As the pissy Europeans reveal, the problem with these almost-identical requests backed by oral requests is that they’re bulk transfers. These are not requests for one suspected terrorist’s financial transfers. They’re something much more general–the old Hoovering they were doing under the illegal wiretap program. And they’re doing that with oral requests.

It sounds rather like the abusive exigent letters they were requesting with Post-It notes … eight years ago.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. orionATL says:

    when is our arrogance going to end?

    we do not even need the info we are finagling and deceiving
    to get.

    terrorism is a trivial issue, the successful attack on the world trade center, masterminded by a pakistani with a family history of attacking the wtc,

    was a once-in-a-hundred-years stroke of luck,

    enabled entirely by fbi, cia, and presidential incompetence.

    in the intervening 10 yrs there has been no similarly effective terrorist effort, nor will there likely be again.

    but data mining, communications intercepts and recording personal data, including bank account data,

    have never figured in preventing the terrorist efforts of the young, single, male, mentally disturbed, terrorists who have tried to destroy an airplane or bomb a public place.

    so why all the fuss with europe?

    i don’t know the answer,

    but human designed and manned security systems gone awray

    seems the likely answer.

    • Gitcheegumee says:

      You want arrogance?

      Nobody beats the Vatican.

      ►Cash Seized in Money Laundering Probe – CBS NewsSep 21, 2010 … Holy See “Perplexed and Surprised” by Investigation into Senior Vatican Bank Officials after $30M Seized.
      http://www.cbsnews.com/stories/…/main6887183.shtml – Cached – Add to iGoogle

      Vatican bank sets up money-laundering unit hoping to escape …guardian.co.ukDec 29, 2010 … The Vatican bank, whose ATM is behind St Peter’s Basicila, is promising … 31 December for the implementation of the EU’s money-laundering directive. … to get the Italian courts to free the assets seized three months ago. …. Money row leaves friars all at See. 8 May 2003. The Vatican’s attempts …
      http://www.guardian.co.uk/…/vatican-bank-money-laundering-authority

  2. earlofhuntingdon says:

    Surely, the EU has the power to interpret the US insistence on the use of oral requests – tied to a demand that no written notes be made – the same way David Addington interpreted congressional legislation: as a suggestion that he can circumvent through artfully crafted signing statements.

    The EU should document the requests, take notes anyway, as an aid designed to help the US avoid inadvertently reneging on its obligations in the written agreement, which is the basis for its access to any personally identifiable information on EU nationals. Given the US’ staunch commitment to the rule of law, that’s the least the EU could do for us.

    • emptywheel says:

      Note the reference to “certain Europol staff.” They’ve got moles or something within Europol who are all too happy to comply with the US requests.

      I’d sure love to know who those are…

      • earlofhuntingdon says:

        Moles or kindred spirits. David Cameron isn’t the only neocon in the EU. The US aids select police and political high flyers with education and exchanges, etc., the way it does Middle Eastern army officers. No doubt, it’s working that network to the bone to get what it wants despite political resistance from people who think that 9/11 was a grave crime, not the sky falling on a way of life, and who disagree with the financially convenient American political-private industry consensus that privacy expectations are as obsolete as the Dodo or president’s who believe in the rule of law.

      • earlofhuntingdon says:

        I’ll bet EU parliamentarians would like to know who, too. They’re circumventing an exhaustively negotiated arrangement to please the American empire.

  3. orionATL says:

    [email protected],8

    good lord :-) !

    what a story. i wonder how one spins this one?

    • Gitcheegumee says:

      Didn’t you know that between Opus Dei, Knights of Malta, omerta…the Vatican is the matrix for Spinocchios?

      A golden loom to spin the golden fleece of the faithful flock of sheeple.

  4. orionATL says:

    our motto: “deductio ex pecunia” **

    spin: hey, look, it’s no big deal. we were just trying to fill some empty collection plates.”

    ** translation from the latin:

    “grab the money and run”

  5. frankiet1 says:

    This kind of arrogance can only be countered by a very firm decision of the Europeans to withhold all cooperation until they force the President to commit in writing to respect the spirit and the letter of the agreement.

    Of course, that assumes the Europeans have the kahunas to do so. (cough! cough!) But that is what it takes to push back against bullies.