Europe is from Mars, America is from Venus

For some time now, I’ve been meaning to blog about the big issue bubbling away over SWIFT, and the access to SWIFT records demanded by the US authorities.

I remember having lunch with some executives at SWIFT back in the summer of 2006, when the news first broke about this. Back then, the New York Times had just broken the previously secretive story that SWIFT was sharing bank data with the US authorities, after having been subpoenaed to share such data. The aim was to track terrorist funding and any transactions that involved suspected terrorist related activities were shared.  The problem is (a) what right does the USA have to subpoenae and access the records of a Europe-based institution and (b) how does SWIFT ensure it's just limited to terrorism records, and not the records of you and I.

SWIFT weren't happy about this action, and particularly that it had now come into public domain.  One SWIFT executive said to me: “when that New York Times journalist is walking around the next Ground Zero and sees the thousands of bodies caused by his exposing this story, see how happy he is then.”  Over a glass of wine, he admitted that he’d like to crush the bones of the journalist and bury him six feet under.

You see SWIFT is meant to be private. It’s a bank consortia, and not meant to be open to any old authority raking over its records.

And, bearing in mind that SWIFT is head officed just outside Brussels in Belgium, the centre of and capital of Europe, having some gung-ho Yankees barking orders at them does not go down well.

Nevertheless, in the spirit of cooperation, the European Commission, Parliament and politicians have been trying to work hard to come up with something that meets the needs of the American authorities whilst not compromising our very European principles.

It won’t work.

But we’ll try.

You see, when it comes to privacy, Europe is from Mars and America is from Venus. Europe believes the individual has a basic human right to protect their privacy. America believes that the State is far more important than the individual, and so listening in to any conversation, no matter how private, is fine.

This is all coming to a head as Members of the European Parliament are debating this topic this week and pushing through a revised agreement with the United States on Wednesday.

This follows the block on the original deal in February, which was meant to allow a continuance of the access that came to light in 2006. That was blocked due to ‘insufficient data privacy safeguards’.

The amended agreement now states that the USA can request European financial data relevant to a specific terrorist investigation, as long as they substantiate the need for the data.

The whole argument over data privacy is illustrated best by this discussion between Frank Gaffney, a lobbyist for US Security, and Baroness Sarah Ludford, MEP, on the BBC’s Radio 4 programme “The World This Weekend”, aired yesterday and presented by Shaun Ley.

The World This Weekend, 4th July 2010 from Chris Skinner on Vimeo.

Shaun Ley: If you pop down to the garden centre or a supermarket this afternoon, what you buy could end up being examined by the Pentagon.  As part of the fight against terrorism, the United States has been seeking authority to receive details of any personal financial transactions from Britain and other European countries. Since 9/11 they’ve had some access informally but, in March the European parliament blocked a government level agreement on data transfer, worried about the threat to privacy. On Wednesday, MEPs will vote on a renegotiated deal.

Frank Gaffney, who was responsible for international security in the State Department under President Reagan, thinks it’s about time.

I’ve been speaking to him and to Baroness Sarah Ludford, Liberal Democrat MEP, who’s been telling me about her concerns including something known as ‘data drilling’.

Baroness Sarah Ludford: Well, rather than searching specifically for a name of a particular individual or particular data in a bank account, you would do a big trawl. A fishing expedition, as it were. Now we haven’t got 100% perfection and we are still concerned that it involves the bulk transfer of data. So European banking data is transferred en block, in bulk, to the United States and it is searched there. What we would like and we have got certain commitments that in the medium term, the option will be explored and hopefully developed, of the data being extracted in a targeted way on European soil. So we don’t have to hand over this mass of undifferentiated data, because clearly there are concerns about that.

Ley: Frank Gaffney, from the US perspective, your authorities wanted this data and wanted this opportunity. Why is it so important to be able to drill down into people’s bank details in that way?

Frank Gaffney: We are confronting enemies that are increasingly sophisticated. Getting insights into the movements of funds that enable this kind of activity to take place is, I think, essential to countering these sorts of threats, both of the violent and of the stealthy kind. The more hamstrung we are, the more likely it is that these sorts of seditious activities will go forward with ever greater success. That’s something I don’t think we can tolerate.

Ley: And are you worried that these kinds of restrictions that are being negotiated with the EU might leave the investigative powers hamstrung?

Gaffney: I do worry about that. I think that’s sort of the object after all, is to constrain those investigatory efforts in the interest of privacy. I like my privacy, like everybody else. I just don’t want to die.

Ley: So a lot of these changes potentially put lives at risk.

Ludford: I don’t believe so. I strongly believe in trans-Atlantic cooperation in a whole series of areas. I’m vice-chair of the European Parliament’s US delegation. We don’t have reciprocal right to US banking data and some of us have wondered what Congress, and the Senate in particular, would say if Europe was to request that the banking data of all US citizens was to be transferred in bulk, en block, to Europe.

Ley: Frank Gaffney, that’s fair enough isn’t it. If you’re going to be given access to my bank details, shouldn’t that work the other way around as well?

Gaffney: I can’t speak for the US government obviously, as I’m not a government official anymore, but I suspect that one of the reasons why there might be a resistance to the kind of reciprocity that seems otherwise unobjectionable and fair, is to the extent that European governments and maybe even the European Parliament itself, have been penetrated by folks who are sympathetic to or actually working for organisations like the Muslim Brotherhood. That would be a real problem from the security point of view that I’m talking about.

Ludford: I can assure you that that is not the case.

Gaffney: I can assure you that it is the case.

Ludford: I don’t like this portrayal somehow of Europe is Venus and America is Mars. I think that is a gross misrepresentation. It’s not about being soft on terrorism but, specifically among the Muslim community, we do need leads and cooperation with the police in that community so you have to be, for law enforcement purposes, quite intelligent about the way you seek to isolate the real terrorist suspects from the bulk of the community.

Gaffney: I agree very strongly with that, but I don’t believe it is intelligent to embrace the Muslim Brotherhood and organisations like that.

Ludford: I don’t think anybody is suggesting that it is.

Gaffney: I can assure you ma’am that that is being done in Britain, it is being done in the Continent of Europe, it is being done in the European Parliament.

Ludford: I can assure you that the European Parliament MEPs are not at all motivated by concern for the Muslim Brotherhood in our insistence on stricter data protection privacy safeguards.

Gaffney: I can simply assure you that it is absolutely a point on which you agree with the Muslim Brotherhood. Whether you are doing it at their behest, or whether you are simply doing it in parallel, is beside the point to my way of thinking.

Ludford: I think that is really unhelpful. I’m sorry, I just find that so unhelpful to somehow cast aspersions on anyone who is championing data protections and saying – whether it’s our banking data, our email, our internet usage, our phone calls, travel information – that it ought to be open season for law enforcement to go fishing around in it all because if you don’t agree to that, you are somehow a front for the jihadists. I think that is so absurd that we can’t discuss this sensibly.

Gaffney: That is not what I have said.

Ludford: Well it comes pretty close to what you said.

Gaffney: What I’ve indicated in the comments so far is that there is an obvious need for a balance between privacy and the need to defend ourselves, especially when civil liberties are being used by our enemies as part of this stealth jihad to undermine and to destroy us.

Ludford: MEPs have spoken on behalf of the majority of people, who are not the ones you are talking about, and I’m sure that MEPs will next week support this new agreement because it has two effects. One is indeed to try and make sure that we can combat terrorism through finding out about terrorist financing, but it also does so under pretty strict safeguards for data protection, and I think that is a win:win situation.

Ley: Frank Gaffney, your last word?

Gaffney: I just hope you’re right. We’ll see.