In my post celebrating the EU’s enlargement I reminded that the road ahead is going to be bumpy. Well, the rough ride starts today. On Tuesday morning, the European Parliament will have to vote again on the issue of whether to endorse or reject an agreement between the EU and the US on the controversial transfer of Airline passenger name records (PNR) (.pdf). The EP has already voted twice on this issue and as opposed to the Council and the Commission ? which has negotiated the agreement with the US – insisted on a Court of Justice verdict establishing the agreement?s compliance with EU data protection regulations or rejecting it. According to Statewatch and EUpolitix.com, the Council of Ministers ? fearing an ECJ ruling against the agreement – has now invoked an ?urgency procedure? to hold a third vote on the issue, hoping to overturn the slim majority of 16 votes with the help of the new – inexperienced and unelected, government dependent – MEPs from the new member states.
Freedom, these days, is not what it used to be. There was a time when most people were afraid of governments? efforts to collect data about them. For a long time, there was a general uneasiness with respect to the privacy related consequences of data processing technologies. But terrorist attacks, and the success of the technology I am using to publish this article have, over the last decade, slowly eroded most people?s resistance. A frog being boiled slowly will not jump out of the kettle. And now, secretly and diligently prepared, the widespread introduction of biometric data in identification documents and passports, as well as the creation of centralised databases to store them along with as much of electronic communication traces as possible ? as Maria Farrell reported last week – has almost become politically inevitable.
Caricature by Sebastian Linke
In a recent essay, Stanford philosophy professor Richard Rorty warned that the long term result of operation enduring freedom – the war on terror – might actually result in the opposite. Are the infringements of civil liberties introduced in order to assure public safey in the face of terrorism, the end of democracy, he asked.
Probably not in the way the term is commonly applied in public discourse ? as some kind of system to provide a regular check on elites. But Democracy, government by, for, and through the people, is only one crucial element of the complex governance structure we call ?liberal democracy?. The rule of law, the protection of fundamental individual rights against private and public infringement by some democratic majority or possibly its (alleged) agent, the government, is another cornerstone thereof ? one that is more likely to suffer because of the current concern with public safety and the alleged supreme risk associated with terrorism.
The current issue of German ?Neon? magazine features an interesting story about risks. The real risks of life, usually expressed in odds, and their perception, which is usually disproportionate: exaggeration and neglect appear to be the most common human strategies to deal with the unknown. i may come as a surprise, but the risk of becoming a victim of terrorism is negligible. Neon reports that, after 9/11, the US scientist Michael Rothstein calculated the odds of dying aboard a commercial flight in a world in which Osama BinLaden would hijack a plane a month ? it was about 1 in 540,000. The risk associated with drowning in the bathing tub is allegedly noticeably bigger.
Of course terrorism has to be fought with all appropriate means – and that may include some measures limiting civil rights – but how are we to determine just what is appropriate in light of our inability to rationally deal with risk? Maybe this is too much to ask of the public – but somehow, faced with the agenda of ?security? lobbyists from outside within their administrations, it seems even the political leadership is having trouble to decide just what is appropriate.
Currently, as today?s PNR vote indicates, most governments are primarily concerned with increasing the input variables of their data-mining projects. Yet if I my interpretation of the lessons of 9/11 is not entirely incorrect, more than information, US intelligence agencies lacked, well, intelligence to put the sketchy puzzle together. How this is to be improved by drowning agents in a pool of substantially useless data is not immediately apparent to me. Even a significant number of intelligence experts have stated that more brains are needed, not more information, and certainly not more scans of tourists entering the US at JFK airport.
I agree with Richard Rorty that it is highly unlikely that either the US government or those in Europe are made up of ?crypto fascists?. The far more likely explanation is simply a failure of political leadership. A failure caused by a general lack of understanding to which extent individual liberty is actually the cornerstone of ?Western Civilisation?, and by the inability to anticipate that the consequences of politically approved civil rights infringements could become more dangerous than fear of terror.
Of course, the counter-argument that imposing some limits on civil rights will not lead onto the slippery slope of a self reinforcing infringements could be correct. Most of the times things are not as bad as they look ? chances are that the technology will simply not work as intended and largely lack interoperability.
But when it comes to significant limitations of individual rights, there should be a true public debate ? and the burden of proof has to be on those proposing the measures. Yet neither is the case. Much of what finally turns up on the political agenda for ratification has been pre-packaged by largely unknown organisations like, say, ICAO, the International Civil Aviation Organisation.
Even the measures were only of temporary nature, or would prove less dangerous than is to be expected today – let us not forget that the darker hours of one of the origins of modern societies – the French Revolution ? offers a prime example of safety turning into terror. Sure, the Committee for Public Safety?s actions can be explained – after all, the Revolution was endangered by war and civil unrest. But does that justify the policies? Even though human rights prevailed after Robespierre himself had slid down the slippery slope, the Revolution had forever been stained by the episode.
And just as in the case of the guillotine, the mere existence of surveillance technology only makes surveillance possible – it doesn?t justify it. On page 38, last week?s Economist offered a glimpse into a bleak version of a technologically dictated future. British police are secretely, and it seems at least partly unwittingly, preparing society-wide genetic fingerprinting. Since a technology is now available to genetically identify relatives of previously scanned offenders, it will likely only be a matter of time until the inevitable will be asked: if some people can be identified using their relatives DNA, wouldn?t it be necessary to take DNA samples from everyone for equality reasons?
Given such visions of a brave new world, the European Parliament?s decision to ask for a ECJ ruling on the legality of the PNR agreement with the US may sound trivial. But the stakes are high And, almost unexpectedly, the EPs resistance raised public awareness.
This, at least, will be true regardless of the result of the vote.
Update: The result is in – the Council?s strategy fell apart. In the first vote of the enlarged Parliament, MEPs voted 343 to 301, with 18 abstentions, against accepting the urgency request to endorse or reject the PNR agreement before a European Court of Justice ruling on the matter. According to EUpolitix, Dutch Liberal Johanna Boogerd-Quaak, who drafted the parliament?s opinion, said ?This means that we have now voted five times to speak out against this agreement with the US. I hope the Council now understands that no means no.?