The War Against Terror and Transatlantic Information Sharing: Spillovers of Privacy or Spillovers of Security?

Abstract

The EU-US Passenger Name Record (PNR) agreement has been among the most controversial instruments in the fight against terrorism that the EU negotiated with the US after the 9/11 terrorist attacks. The agreement has been heavily criticised for its implications regarding fundamental rights, in particular the rights to privacy and data protection. Nevertheless, the EU has put forward plans to develop its own PNR programme. The present article aims to examine the new dynamics concerning privacy that arise from the transatlantic fight against terrorism. It argues that, while attempts for the development of a transatlantic privacy protection framework have been made, 'spillovers' of security, taking the form of internalisation of external counter-terrorism measures, are prevalent in the era of the war against terror. UTRECHT JOURNAL OF INTERNATIONAL AND EUROPEAN LAWKeywords: privacy; data protection; counter-terrorism; PNR The present article aims to examine the new dynamics concerning privacy that arise from the transatlantic fight against terrorism. It argues that, while attempts have been made for the development of a transatlantic privacy protection framework, 'spillovers' of security taking the form of internalisation of external counterterrorism measures are prevalent in the era of the war against terror. In this respect, using the PNR case as an example, the article submits that a fundamental paradox in the EU's fight against terrorism is emerging: external security measures severely criticised by the EU institutions for violating EU privacy and data protection standards are followed by proposals for the internalisation of the same or similar internal security measures which call into question the common vision of the EU as the cradle of privacy protections.This article is structured as follows. First, it presents a brief overview of the EU-US PNR saga. It then addresses the contention articulated by James Whitman that Europe and the US are 'two western cultures of privacy' by taking a look at the EU and the US privacy regimes. Subsequently, it discusses the need for the development of a transatlantic privacy and data protection framework and critically examines the relevant existing proposals. Finally, it investigates the EU's own PNR proposal and argues that 'spillovers' of security are taking the front seat to potential 'spillovers' of privacy in the transatlantic fight against terrorism.

The European Union as a Global Counter-Terrorism Actor

“…Against that backdrop, it is no surprise that the EU's most important and most developed counter-terrorism relationship has been with the USA, where cooperation has reached a high level of intensity, ranging from dialogues to various agreements that require the transfer of personal data. This importance has been reflected in the literature on transatlantic ties, where the security relationship -often in relation to terrorism -has become a major area of research in the last few years (Argomaniz, 2009b;Kaunert, 2010aKaunert, , 2010bMacKenzie, 2010MacKenzie, , 2012Monar, 2010;Occhipinti, 2010;Pawlak, 2009a;Rees, 2006Rees, , 2009Rees and Aldrich, 2005;MacKenzie, 2011, 2012;Tzanou, 2015;Soare, 2020). Importantly, prior to 9/11, there was almost no cooperation between the EU and the USA on security matters, to the frustration of Washington.…”

The European Union as a Global Counter-Terrorism Actor

“…Against that backdrop, it is no surprise that the EU's most important and most developed counter-terrorism relationship has been with the USA, where cooperation has reached a high level of intensity, ranging from dialogues to various agreements that require the transfer of personal data. This importance has been reflected in the literature on transatlantic ties, where the security relationship -often in relation to terrorism -has become a major area of research in the last few years (Argomaniz, 2009b;Kaunert, 2010aKaunert, , 2010bMacKenzie, 2010MacKenzie, , 2012Monar, 2010;Occhipinti, 2010;Pawlak, 2009a;Rees, 2006Rees, , 2009Rees and Aldrich, 2005;MacKenzie, 2011, 2012;Tzanou, 2015;Soare, 2020). Importantly, prior to 9/11, there was almost no cooperation between the EU and the USA on security matters, to the frustration of Washington.…”

The European Union’s Passenger Name Record Data Directive 2016/681: Is it Fit for Purpose?

“…They state the more embedded a country, or in this case the EU, is in networks through which the US could exert influence, the stronger is that country's counter-terrorism policy. 33 37 The adoption of this Directive was relatively rapid as transferring API is less controversial than transferring PNR data. PNR data depends on information the passenger submits during the time of the reservation that includes more detailed personal information such as method of payment, dietary requirements, personal contact information and complete travel itinerary.…”