Why Europe should never trust US promises on security reform

 By Simon Davies

There’s something of the Neville Chamberlain in EU Justice Commissioner Viviane Reding’s assurances that concessions are being won from the US over PRISM. Truth be told the result of the current stand-off will never be “peace for our time”. On the basis of recent history the US simply cannot be trusted to honour any commitment to reform the arenas of privacy or security.

If the negotiation process was to be left to the likes of Reding there may have been a slim chance to twist a few arms in Washington. But unfortunately Europe has a viper in its nest – and that viper is the UK.

The UK’s special relationship with the US means that the Brits have a seat at almost every table in the negotiations. The Americans insist on that. As James Bamford noted in his groundbreaking analysis of the NSA “The Puzzle Palace“, US and UK operatives in the security field work so closely together that their roles become indistinguishable from each other.

Even though Reding has carved out some media space for her own views, the back-room machinations will always involve UK reps who will ensure that there will never be European unity against US spying. Without unity the US can portray the current dissent as fragmented and unstable.

Of course the UK never needed help from America to corrode privacy. It has been at the forefront of almost every devastation of privacy since the 1980’s, from data retention and air passenger surveillance to the data protection regulation. With Britain institutionally engrained in the negotiation process it will be impossible for the Commission or member states to achieve traction.

Even without Britain’s assistance, Europe is at a fatal disadvantage in claiming the moral high ground. Under the international signals intelligence agreement (known as UK-USA or Quadripartite) several EU states including Norway, Denmark, Germany, Italy, Greece and Austria have cooperated for decades as “third parties” with the US on spying activities (the US is “first party”, the UK is described as “second party” while third party countries are less trusted).

Setting aside for a moment the mass of often one-sided bilateral and multilateral mutual assistance agreements that Europe allowed the US to bully its way into existence (one thinks of the hopelessly unfair extradition agreements) the nature of US commitments is at best shaky and at worst a downright deception.

The graphic at the head of this article shows just a few recent issues on which the US had falsely promised reform. In each case the commitments came to nothing. I have recently written about the history of past scandals involving the NSA’s ECHELON interception system (1998) and the SWIFT financial data interception arrangement (2006), both of which attracted commitments to reform by the US and both of which resulted in almost no beneficial result. The unlawful interception and disclosure by SWIFT continued with cover from the White House while the NSA’s role in the ECHELON scandal was institutionalised through greater Congressional scrutiny but with no significant limitation on the powers of the agency.

None of the US administrations from Clinton onward have delivered on commitments to reform the arenas of privacy and surveillance. Safe Harbor, for example, was a device used to ensure that the data trade could continue between Europe and the US after the 1995 EU Data Protection Directive was passed. It was a minimalist solution that was supposed to evolve into something stronger but it transpired that the US never intended to follow through on commitments to strengthen it. Europe – cheered on by the UK – sat by complacently and allowed it to continue as a transparent sham.

Europe can bluff and bluster all it wants about the evils of PRISM. The reality is that the EU is neck-deep in the surveillance game and it can’t easily extricate itself from the mire that it helped create. Campaigners need to understand that this particular river runs very deep and so their strategies need to be merciless and ingenious.