BORDER SECURITY POLICY PAPER SERIES

SPEED BUMPS AND ACCELERATORS

Emerging Issues in Transatlantic Border Management
PATRYK PAWLAK

 2014 The German Marshall Fund of the United States. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the German Marshall Fund of the United States (GMF). Please direct inquiries to: The German Marshall Fund of the United States 1744 R Street, NW Washington, DC 20009 T 1 202 683 2650 F 1 202 265 1662 E info@gmfus.org This publication can be downloaded for free at http://www.gmfus.org/publications/index.cfm. Limited print copies are also available. To request a copy, send an e-mail to info@gmfus.org. About the International Border Security Forum The German Marshall Fund of the United States (GMF) hosts the International Border Security Forum to enhance understanding between senior multilateral policymakers and build cooperation on the most pressing border security challenges. This program brings together political level representatives from the member states of the European Union, the United States, Canada, and Israel. The format of the meetings is an off-the-record conversation among a small, yet highly selective group of senior policymakers, and designated senior experts. The accompanying series of policy brief deepens the discussion and provides information to the larger border security community. About GMF The German Marshall Fund of the United States (GMF) strengthens transatlantic cooperation on regional, national, and global challenges and opportunities in the spirit of the Marshall Plan. GMF does this by supporting individuals and institutions working in the transatlantic sphere, by convening leaders and members of the policy and business communities, by contributing research and analysis on transatlantic topics, and by providing exchange opportunities to foster renewed commitment to the transatlantic relationship. In addition, GMF supports a number of initiatives to strengthen democracies. Founded in 1972 as a non-partisan, non-profit organization through a gift from Germany as a permanent memorial to Marshall Plan assistance, GMF maintains a strong presence on both sides of the Atlantic. In addition to its headquarters in Washington, DC, GMF has offices in Berlin, Paris, Brussels, Belgrade, Ankara, Bucharest, Warsaw, and Tunis. GMF also has smaller representations in Bratislava, Turin, and Stockholm.

On the cover: An airport at sunset. Chalabala/istockphoto

Speed Bumps and Accelerators

Emerging Issues in Transatlantic Border Management1

Border Security Policy Papers March 2014

By Patryk Pawlak2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Mobility and Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Migration and Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Threats without Borders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Cross-Cutting Issues: Speed Bumps and Accelerators . . . . . . . . . . . . . . . . . . . . .11 Scenarios for Future Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the German Marshall Fund of the United States (GMF) Warsaw Office. 2 The author would like to thank Earl Fry, Ralf Roloff, and Stephen Schneider for comments on earlier drafts of this paper. All mistakes are those of the author. The views expressed in this paper are those of the author only and are not an official position of the EU Institute for Security Studies or of GMF.

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Introduction

he aim of the border management policies has traditionally been to protect the citizens by preventing dangerous individuals and materials from getting into a specific territory. According to that paradigm, a physical border of a country is the last stop where a states security mechanisms are tested before an external problem becomes an internal one. The security functions are then performed by agencies other than border guards law enforcement and intelligence services in particular. However, the terrorist attacks that have hit the United States and Europe since 2001 have exposed the limitations of that approach. Consequently, on both sides of the Atlantic, there was increased focus on the implementation of more comprehensive border management approaches like integrated border management (IBM) designed by the EU as a response to expanding EU borders and the smart borders paradigm in the United States that relies on pushing the borders out. The rationale behind such approach is that any danger should be detected at its origin and prevented from reaching the physical border of a concerned state. As a result, the process of border control is split into two stages: pre-screening at a point of origin and verification and control at the physical border of a receiving state. Such a layered approach implies the need for more international cooperation, including through joint threat prevention programs and capacity building (e.g. provision of detection equipment to foreign governments or increasing supply chain security efforts to track cargo). More recent developments have added to the complexity of this picture. First, the instability across the Middle East and North Africa, Sahel, or in the Horn of Africa made the link between internal security and foreign policies even more pronounced. Whether dealing with migratory pressures or strengthening the capacities of security sector, a required response often goes beyond purely diplomatic efforts and includes cooperation

on certain aspects of internal security. At their meeting in December 2013, the EU heads of states and governments acknowledged the need to increase the synergies between Common Security and Defence Policy (CSDP) and actors involved in various dimensions of freedom, security, and justice, including by strengthening the support for third countries in order to improve their border management capacities. Concrete examples of already deployed missions include the EUs Border Assistance Mission in Libya (EUBAM Libya), the EU Training Mission in Mali (EUTM Mali), and the CSDP mission EUCAP Sahel Niger. In addition to political determinants, there are a number of facts that provide additional impulse to the discussion about the future of border management. It is estimated, for instance, that the number of travelers to the EU Member States will increase by 80 percent to reach 720 million a year. The International Air Transport Association (IATA) provides another set of data. According to their Airline Industry Forecast 2012-2016, international passenger numbers are expected to grow from 1.11 billion in 2011 to 1.45 billion passengers in 2016, bringing in 331 million new passengers. By 2016, the top five countries for international travel measured by number of passengers will be located in the transatlantic area: the United States and four EU member states the United Kingdom, Germany, Spain, and France. Border agencies admit openly that the existing border control and border check systems are simply not able to handle this ever increasing pressure. In addition, the growing constraints on public finances in many countries place additional pressure on state authorities to protect their own economic interests, including using measures that extend beyond their physical borders. For instance, the global cost of piracy is estimated from $1 to 16 billion, while for drug-trafficking this number amounts

Whether dealing with migratory pressures or strengthening the capacities of security sector, a required response often goes beyond purely diplomatic efforts and includes cooperation on certain aspects of internal security.

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to $600 billion (5 percent of global GDP)1. It does not come as a surprise, therefore, that the focus on the fight against financially motivated crime (e.g. counterfeiting, cybercrime, etc.) is a priority.

or racial and ethnical profiling. Reconciling these two dimensions on border management remains a key challenge. The purpose of this paper is to look at some of the most pressing challenges to border management policies in the transatlantic area. Borders are treated as physical spaces where the link between external and internal security is most visible: whenever efforts to deal with a specific challenge by diplomatic or other means fail, the consequences will be felt on the borders. This is the case with Syria where the continued conflicts and the absence of political solution have resulted in record numbers of Syrian refugees on the EU borders. In the United States, the difficulties experienced by the government of Mexico in dealing with drugtraffickers and gangs in the north translate into problems on the U.S.-Mexico borders and within the U.S. territory itself. Finally, despite development aid provided to poorest nations, each year millions of people abandon their homes and migrate in the search of a better life. This paper looks at border management in a broader context whereby borders represent the last line of defense before an external issue becomes an internal problem in the transatlantic area.

Designing efficient border management policies is increasingly difficult and is a constantly moving target.

For those reasons, designing efficient border management policies is increasingly difficult and is a constantly moving target. The challenge is to propose solutions that will be efficient and effective in making borders secure. The investment in new security and surveillance technologies is often seen as a move toward achieving this objective. The EU, for instance, devotes substantial resources to projects that explore and evaluate potential benefits in terms of efficiency, cost effectiveness, and accuracy that could be brought to maritime wide area surveillance by new concepts such as remotely controlled airborne sensors, unmanned airborne platforms, and new algorithms. At the same time, however, the policy needs to take into account the ethical implications as well as the societal and economic impact of the measures in order to render them acceptable to public opinion. This aspect is particularly relevant in discussing the use of unmanned aerial vehicles (UAVs) for surveillance
1

Lewis, J. A. and Baker, S. (2013) The Economic Impact of Cybercrime and Cyber Espionage, July 2013, Center for Strategic and International Studies, Washington, DC.

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Mobility and Technology

n important component of border management is ensuring security without hindering the movement of people and goods across borders. For instance, the vertical integration of North American industries puts increasing pressure on the need for trade facilitation and potential trade disruptions. Regional business communities in at least nine of the ten Canadian provinces now export more to the United States than to the rest of Canada. To that aim, the idea of smart borders was first discussed at the G8 summit in Kananaskis in Canada in 2002. It was initially meant as an instrument to facilitate trade between the United States, Mexico, and Canada. The proposal foresaw the establishment of special trilateral inspection teams to jointly inspect vehicles and once given the green light, such vehicle would be able to move across borders without additional border controls. The essence of smart borders as defined by the Bush Administration in 2002 was for the borders of the future to integrate actions abroad to screen goods and people prior to their arrival in sovereign U.S. territory. Reliance on the stateof-the-art technology is generally seen as a way to track cargo as well as to monitor individuals. In the United States, the application of a smart border paradigm resulted in the extended application of existing tools (e.g. the use of Passenger Name Records (PNR) for screening purposes) or gave birth to new instruments like the Electronic System of Travel Authorisation (ESTA). In an effort to depart from a one-size-fits-all model to a more intelligence-driven and risk-based approach, the Department of Homeland Security has in recent years introduced a number of trusted traveler programs that allow for expedited screening of low-risk passengers: TSA Pre (for passengers traveling domestically within the United States and for international travel when departing from a U.S. airport that participates in TSA Pre), Global

Entry (allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States), Nexus (for travelers between United States and Canada), and Sentri (for travelers between United States and Mexico). In 2008, the European Union presented its own smart border package, which included the rollout of the Entry-Exit System (EES) for non-EU citizens or the establishment of the EUs own Passenger Name Record system. None of these measures has been fully introduced yet, although the EU made substantial progress toward modernizing its border management system. It upgraded the existing mechanisms (e.g. second generation of the Schengen Information System, SIS II), increased the competence of specific internal security agencies (e.g. Europol, Frontex), and established a new agency to manage all essential instruments in the implementation of EU asylum, migration, and border management policies (the EU Agency for Large-Scale IT Systems, eu-LISA). Whereas nowadays the smart border paradigm remains predominant in shaping border management policies, the whole system is increasingly under stress for a number of reasons. First, governments tend to see the opportunities offered by new technologies as a solution to all their problems, which may lead to function creep and consequently undermine trust in the whole approach. For instance, several European governments would like to use proposed border control and migration management systems like the EES for law enforcement and counter-terrorism purposes. The European Commission, however, has expressed concerns about the proportionality test between, on one hand, all the personal data to be collected and stored in the EES, and on the other hand, the usefulness of allowing the use of EES for combating crime.

Governments tend to see the opportunities offered by new technologies as a solution to all their problems.

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The nature of flaws and potential threats has also gradually evolved. It is no longer about making sure that third country nationals do not cross borders illegally but increasingly about preventing countrys own nationals from posing a danger.

Second, the roll-out Box 1: Foreign Fighters and Returnees from Syria of new systems is Several security agencies focus on addressing the threats to internal security increasingly questioned posed by Jihadists travelling to Syria and other hotspots. According to the for the reason of their International Centre for the Study of Radicalisation, up to 11,000 individuals economic and societal from 74 nations have become opposition fighters in Syria. It is estimated that consequences. The costs the number among Western Europeans has more than tripled, from (up to) 600 of the implementation in April to 1,900 in December 2013 which represent up to 18 percent of the foreign fighter population in Syria. Official data released by individual countries of the Entry/Exit System confirm this growing trend. The French and Danish governments have doubled and the Registered their estimates since the beginning of 2013; the Belgian, British, and German Traveller Programme governments have quadrupled their numbers. These figures include those who (RTP) would need to are currently present as well as those who have since returned home, been be covered by member arrested, or killed. Other identified individuals come from Southeast Asia, North states with the support America, Australia, and (non-Arab) Africa. The most prominent non-European Western countries are Australia (between 23 and 205 individuals), Canada of the European Union. (between 9 and 100), and the United States (between 17 and 60). Only about 20 This is reflected in percent of the sources stated group affiliations, primarily to Jabhat al-Nusra and the next multi-annual the Islamic State of Iraq and al-Sham (ISIS) the two militant opposition groups financial framework for with close links to al Qaeda. 2014-20, which includes According to the EU Counterterrorism Coordinator, the response to this challenge 4,648 billion for the needs to combine various approaches: Internal Security Fund Legal cooperation, including adequacy of legal frameworks, criminal (ISF) that finances new response and the use of administrative sanctions, and information large-scale IT systems exchange in the context of investigation and prosecution; and an additional 822 De-radicalization and humanitarian assistance projects as a viable million set aside for the alternative for those interested in helping in Syria; management of existing Border management instruments, including the implementation of the large scale-IT systems EU PNR system, increased and harmonized use of SIS alert system, and (Schengen Information developing risk indicators; System II, Visa Cooperation with priority third countries, including Turkey, Jordan, Egypt, Information System, Libya, Western Balkans, and capacity building assistance and EURODAC) and Sources: International Centre for the Study of Radicalisation (www.icsr.org); EU official documents the eu-LISA. Past experiences are also Finally, the nature of flaws and potential threats has complicating the task also gradually evolved. It is no longer about making for advocates of these new technologies. In 2010, sure that third country nationals do not cross the implementation cost of the SIS II rose to 135 borders illegally but increasingly about preventing million from the 23 million foreseen in 2001. countrys own nationals from posing a danger. Furthermore, the argument regarding the negative The EU Terrorism Situation and Trend Report for impact of those instruments on fundamental 2013, for instance, highlights the effort of several freedoms in particular on the right to privacy EU countries in addressing their own indigenous is constantly made by civil liberties organizations. terrorist problem among separatist movements, single-issue terrorists, or right/left wing terrorism

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that can move freely across borders. In most of such cases, the methods used by border management agencies are of limited use. For instance, the currently existing large-scale databases cannot help in identifying self-radicalized individuals unknown to any law enforcement agency. Even more telling is the participation of European and U.S. citizens in conflicts or terrorist attacks in other parts of the world an issue that recently arose to the top of the political agenda. For instance, there is some evidence suggesting that a British woman, Samantha Lewthwaite, was involved in the siege at a Kenyan shopping center in September 2013. The estimates of the number of fighters from Western Europe in Syria are equally worrying. According to the International Center for the Study of Radicalisation, this number ranges from 396 to

1,937 individuals and is quite significant given that identifying them is extremely difficult. Whereas identification of foreign fighters poses a problem primarily for border guards, it also demonstrates that complex challenges require a comprehensive policy response, including de-radicalization projects, humanitarian aid projects, intelligence, and judicial and law enforcement measures (see Box 1). The ongoing court case against three young Frenchmen suspected of their willingness to join jihad in Syria, on the other hand, demonstrates the challenges of similar cases for the judicial system. The problem of foreign fighters also becomes the subject of discussions between the EU and its partners in the region, in particular with Turkey and Israel.

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The United States and countries of the European Union have made numerous modifications to their migration policies, including the adjustments in their visa policies or identity verification methods.

Migration and Technology

continuous instability in Middle East and North espite the fact that the debates about Africa. migration seem to focus on different issues in Europe and in the United States Over the past decade, the United States and Europeans discuss how to limit the cases of countries of the European Union have made illegal border crossings whereas Americans focus numerous modifications to their migration on dealing with immigrants that are already on policies, including the adjustments in their visa their territory both sides still share a number policies or identity verification methods through of common challenges. According to the Pew the introduction of new technologies, including Research Center report on changing patterns biometric identifiers in travel documents or of global migration released in December 2013, as a part of the visa application procedure. But Europe and North America are the top two these methods provide only a partial remedy in destination regions of international migrants. the case of individuals who decide to cross the In the United States, the number of immigrants borders illegally. The recourse to traditional border amounted in 2013 to 46 million, with 55 percent protection methods like increased patrols or of all foreign-born people living in the United strengthening the infrastructure (i.e. the fence or States coming from Latin American and the sensors along the U.S.-Mexican border) also help Caribbean countries. According to the same report, to address this challenge but require significant the share of international migrants in Europe human and financial resources. According to the remained constant, although the composition Frontex Annual Risk Analysis in 2012, there was a of this group has changed considerably with a 49 percent drop in illegal border crossings between substantial number of intra-European Figure 1. Concerns about Immigration in the United States and Selected migrations occurring EU countries as a consequence of successive 100 enlargements of the 90 European Union. 80 Nevertheless, a 70 considerable number 60 of migrants come 50 from countries like Legal immigration 40 Morocco, Algeria, 30 Illegal immigration 20 Turkey, India, or 10 refugee-sending 0 countries like Somalia or Iraq. The composition of this group has changed over the past Source: Transatlantic Trends 2013. Authors compilation. few years with the
Note: EU-11 includes France, Germany, Italy, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, and the United Kingdom

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Turkey and Greece compared to 2011 (the so-called Eastern Mediterranean route) due to an increased presence of border guards along the border. It is not clear, however, how sustainable such an approach is. The shifting migratory routes and high expectations for security governance expressed by citizens toward their governments provide an impulse for increasing investment in security and surveillance technologies for border protection. The Pew Research Center report mentioned earlier confirms dramatic reductions in arrivals of new unauthorized immigrants from Mexico, which can be partly explained by the huge investment in border surveillance infrastructure (e.g. sensors, fence).2 The U.S. Department of Homeland Security deployed thermal camera systems, mobile surveillance systems, and remote video surveillance systems along northern and southwestern borders. It also expanded the unmanned aircraft system (UAS) coverage, with approximately 1,150 miles coverage along the Northern border and the entire Southwest border. Similarly, several efforts were made by the European Union, including the launch of the European Border Surveillance System (EUROSUR) in December 2013. EUROSUR is a multipurpose system to prevent cross-border crime and irregular migration and to contribute to protecting migrants lives at the external borders (see Box 2). In addition, the EU provided its financial support for security-oriented research through the Framework Programme for Research (FP6 and FP7) and their successor Horizon 2020 which is the EUs biggest research and innovation program ever with nearly 80 billion of funding available over 7 years (2014 to 2020). For instance, the previously funded projects focused on surveillance in wide maritime areas either by using a surveillance system installed on buoys or more complex systems using unmanned aerial vehicles
2 The report notes that between 2007 and 2009, more undocumented Mexicans left the United States than went there illegally.

(UAVs) to build a common operating picture through detection, localization, identification, and tracking of targets that can be classified as a threat moving/entering the border. Notwithstanding numerous efforts, a relatively high percentage of Europeans and Americans still view migration as a security challenge. The situation is even more delicate in countries that were hit particularly hard by the financial crisis, like Italy, Greece, or Spain. The most recent analysis also suggests that the risks of illegal border-crossing along the land borders of the Eastern Mediterranean route and across the Central Mediterranean area remain highest due to instability in North Africa and Middle East. In 2012, Afghans remained the most detected nationality for illegal border-crossing but the growth in the level of detections across the EU was highest for Syrians (+389 percent compared to 2011) who fled the civil war in their country to seek asylum. The risk is further mounted by poor performance of border management across the region itself. In the absence of well-developed border management capacities including the legal framework, hardware, and well trained border guards, the illicit flows across unsecured borders (drugs, conventional arms, sanctioned contraband, terrorists and their funds, weapons of mass destruction-related materials, and conflict minerals) pose an increasing threat to international peace and security. The conflict in Mali is a good example of how spill-overs from one country may influence regional stability. In response, the EU under the Instrument for Stability provided 2.2 million for a project implemented in cooperation with Interpol and the Libyan authorities to make tangible improvements to Libyan border security and help security sector reform. That includes, for instance, providing the Libyan border control authorities with access to INTERPOL databases and the INTERPOL network to detect stolen and

The shifting migratory routes and high expectations for security governance expressed by citizens toward their governments provide an impulse for increasing investment in security and surveillance technologies for border protection.

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lost passports, and Box 2. European Border Surveillance System (EUROSUR) help identify wanted The first phase of EUROSUR was officially launched on December 2, 2013 with the persons including objective to reinforce control of the Schengen external borders. It will initially be suspected terrorists operational in 19 countries and in a total of 30 countries as of December 1, 2014. and international EUROSUR will establish a mechanism through which member states and the EU criminals. Similarly, border agency Frontex will be able to share operational information and cooperate the U.S. authorities in order to reduce the number of irregular migrants and to increase internal security by preventing cross-border crime. Special emphasis has been given to ensure the through the Merida compliance with fundamental rights and obligations under international law. Initiative a counterdrug and The system employs intelligence-driven approach to border surveillance. The backbone of EUROSUR is formed by national coordination centers, via which anticrime assistance all national authorities with a responsibility for border surveillance (e.g. border package for Mexico guard, police, coast guard, navy) are required to cooperate and to coordinate their and Central activities. America support Frontex plays an important role in bringing together and analyzing the European training programs situational picture information collected by member states, thereby detecting for police forces in changing routes or new methods used by criminal networks. This European Mexico, including in situational picture also contains information collected during Frontex joint operations and on the pre-frontier area. The external land and sea borders have modern investigative been divided into border sections and a low, medium or high impact level is techniques, being attributed to each of them, similar to a traffic light. This approach identifies promoting a culture hotspots at the external borders, with a standardized reaction at the national, and, of lawfulness, and if needed, European level. implementing key Data may be collected from ship reporting systems in accordance with their justice reforms. respective legal bases; satellite imagery; and sensors mounted on any vehicle, Furthermore, vessel, or other craft. Early detection is also possible thanks to cooperation with the U.S. Agency third countries in various networks: Seahorse Atlantic (with Morocco, Mauretania, Gambia, Senegal, Cap Verde, and Guinea Bissau) or Black Sea Cooperation Forum for International (with Ukraine, Georgia, Russia, and Turkey). Development Source: European Commission (USAID) supports Mexican efforts to mitigate the community-level impact of crime and violence and to implement safeguards for citizens rights in the criminal justice constitutional reforms.

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Threats without Borders

he difficulty with effective border management stems also from the nonphysical nature of some challenges. Pandemics, natural crises, or the consequences of human-made disasters are often felt across borders. The policy responses are either rather limited or non-existent or simply too costly (e.g. a complete shutdown of traffic across borders). A different type of challenge comes from activities in cyberspace, which do not fit neatly within physically or legally defined borders. Swedish Foreign Minister Carl Bildt, in his speech during the Seoul Cyber Conference in October 2013, described the cyberspace as the mirror of our societies and of our world. He drew an accurate

comparison to challenges in cyberspace by stating: Pirates are there. Terrorists are there. Criminals are there. Spies are there. The access to Information and Communications Technologies (ICTs) has in many ways changed the nature of crime and made its detection more difficult. Stopping cybercrime at borders by blocking the traffic coming from a country where the most of the crime originates although possible in theory would be very difficult to implement given the very high cost that such an indiscriminate move would have for the population of that country. Therefore, while the nature of cybercrime goes beyond the traditionally understood border paradigm (i.e. no physical controls, hence limited

Box 3. Cybercrime Capacity Building in Eastern Europe

The EU Cybersecurity strategy states clearly that the support for the Budapest Convention on Cybercrime (2001) is one of its main objectives. To that aim, the EU and the Council of Europe (CoE) are working together to support measures against cybercrime based on existing tools and instruments and to ensure effective implementation of the Convention. The CyberCrime@EAP is a regional project to strengthen the capacities of criminal justice authorities of Eastern Partnership countries to cooperate effectively against cybercrime in line with European and international instruments and practices. The countries covered by the project are Armenia, Azerbaijan, Moldova, Ukraine (parties to the Convention), Georgia (preparing ratification), and Belarus (indicated interest in accession). The project addresses policies and awareness of decision-makers, harmonized and effective legislation based on the Budapest Convention on Cybercrime, judicial and law enforcement training on cybercrime and electronic evidence, law enforcement, international cooperation, and financial investigations. At the level of practical achievements, the project contributed to enhancing the capabilities of law enforcement and judicial authorities to detect, investigate, prosecute and adjudicate cybercrime. Relevant provisions in project countries were assessed from the perspective of their compliance with international standards. Regional events were organized to exchange experience and share good practices, which increased knowledge of methods used by offenders, as well as of tools and good practices to investigate. Synergies were created with a broad range of initiatives and organizations, in particular developed at the European Union level (e.g. Cybercrime Centres of Excellence for Training, Research and Education, or 2CENTRE), the Organization for Security and Cooperation in Europe (OSCE), Organization for Democracy and Economic Development (GUAM), and others. Building on this experience, the EU and CoE have also launched a joint project called the Global Action on Cybercrime. The project has a global scope and will support, in a pragmatic manner, states that are prepared to implement the Budapest Convention. It is expected that by the end of the project, up to 70 states will participate in international efforts on cybercrime using the Budapest Convention as their common framework.
Source: Council of Europe

Speed Bumps and Accelerators

ways of identifying a threat at the border crossing), the response to cybercrime is still restricted by typical border-related and spatially constraining concepts like sovereignty and jurisdiction. In other words, while the perpetrators are not limited by physical space and operate in a borderless environment, the respondents are governed by the rules of physical world and can operate only within their own jurisdiction. This, in turn, moves the responsibility for addressing cybercrime from

border guards to law enforcement agencies and adds significance to international cooperation on cybercrime. In that context, the promotion of the standards enshrined in the Budapest Convention on Cybercrime adopted by the Council of Europe in 2001 and building capacities of countries that wish to align their legislation and response mechanisms with the convention remain high priorities (see Box 3).

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Cross-Cutting Issues: Speed Bumps and Accelerators

Multistakeholder Approach Security increasingly becomes a multi-stakeholder process. It is no longer purely a matter of law enforcement but increasingly of arranging relations between private sector or citizens and governments. Cities, regions, and local communities all become important players in the process. The expanding competencies of JHA agencies (Frontex, Europol, Eurojust, EASO, CEPOL, eu-LISA) also calls for more streamlining and coordination with other actors across organizational cultures (i.e. development-security, civil liberties-security). Engaging citizens requires convincing them that more security does not necessarily mean less freedom. Finally, the shifting international context also implies that the list of strategic partners and regional priorities needs to better reflect the evolving international context. This shift toward more networked forms of security governance opens the space for network politics whereby members of a network attempt to affect the policy process and outcomes through promoting their own ideas. It is through the prism of the network politics that both deadlocks and enhanced decisionmaking capacities can be better understood. In some instances, it may enhance learning processes among actors and build trust leading to the emergence of informal policy instruments. But certain decisions about the functioning of a network might also enhance the conflicting aspects of policymaking leading to deadlocks or obstacles in the process. Ethics, Civil Liberties and Human Rights Despite advantages they may offer, security and surveillance technologies raise many questions about the ethical aspects of their use and their impact on society and its values, including accountability and transparency, human dignity, and good governance. The use of biometric identifiers, profiling (officially governments

s the challenges described in previous sections demonstrate, the separation between law enforcement, border management, intelligence, and defense while still present in legal systems and institutions is slowly disappearing in functional terms, making it difficult to neatly separate individual state functions and policy responses. Nevertheless, the specific choice embedded in each of those areas will either accelerate or create problems for transatlantic cooperation in border management. Balancing Development, Diplomacy and Defense The lines between security and development are increasingly blurred. Delivering development aid becomes impossible in conflict areas or territories where the security situation is unstable. Development is also an important element in the discussions about the migration policy since improving the living conditions in countries of origin is one of the ways to deal with migratory pressures. The intervention in Libya, the crisis in Mali, and the terrorist attack in Algeria are clearly interlinked and require a comprehensive approach. In such a context, the integration of the new 3Ds of security development, diplomacy, and defense may prove to be valuable in addressing security challenges more effectively. The counter-piracy efforts in the Horn of Africa and the situation in Sahel demonstrate that the role of internal security actors dealing with border management, the rule of law or security sector reform in building the capacities in third countries is an important component of the discussion. But at the same time, it needs to ensure that the full respect for the existing international laws and norms, for instance those enshrined in the International Convention on Civil and Political Rights, are fully respected.

Despite advantages they may offer, security and surveillance technologies raise many questions about the ethical aspects of their use and their impact on society and its values, including accountability and transparency, human dignity, and good governance.

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Table 1: Speed Bumps and Accelerators in Transatlantic Cooperation deny using profiling techniques), and Cross-cutting Speed bumps Accelerators sharing information issue between immigration, Development, Militarization and Vision and willingness to intelligence, and diplomacy and securitization of discourse cooperate law enforcement defense Limited resources Trust Divergence of priorities Support from recipient agencies led to External shocks countries protests from data Enhanced legitimacy and Multistakeholder Turf wars and limited crossprotection advocates. transparency approach agency cooperation The Orwellian vision Improved cross-agency Network politics: Ideological of Big Brother cooperation approaches (i.e. anti Early warning and dialogue Americanism) controlling our Political calendar every move became Ethics, civil Abuse of power and Respect for rule of law and even more real with liberties, and mechanisms human rights Edward Snowdens human rights Unethical policies and Transparency and legitimacy of revelations about the instruments the process scope of surveillance programs managed by the United States legal frameworks and ethical standards, it is also National Security Agency. At the same time, the necessary to take measures against possible abuse uncertainty surrounding the use of UAVs by of these technologies that could adversely influence governments for surveillance purposes and their the level of public trust. Human rights groups are impact on privacy highlight the challenges for also skeptical about the humanitarian nature of existing legal frameworks. The dual nature of systems like Eurosur, which lists saving migrants UAVs, which can also be used to strike military in the open sea as one of its objectives. With regard targets, further complicates the assessment of this to the policy development process itself, a broad technology. Transatlantic Trends 2013 reports reliance on transgovernmental informal networks that 71 percent of Americans approve of using between U.S. and European policymakers (e.g. Task drones to find or kill suspected enemies in places Forces, High-Level Working Groups, etc.) raises like Afghanistan or Pakistan while 53 percent of the question about legitimacy and transparency Europeans disapprove. In addition to ensuring given that these networks operate beyond any legal that the use of drones complies with existing mandate provided in the treaties.

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Scenarios for Future Cooperation

ransatlantic cooperation on border management does not take place in a vacuum. Hardly any other EU partnership is under such a detailed scrutiny. Given the high density of transatlantic integration in many policy areas, this is both a blessing and a curse. The past decade of transatlantic homeland security cooperation with border management policies as its foundations was particularly intense. Even though there is a lot of truth in opinions characterizing the presidency of George W. Bush as one of permanent conflict, it was also a period when EU-U.S. cooperation on security issues advanced most and when the foundations for transatlantic dialogue on security were laid down. The governance of the relationship moved from formal, inflexible, and mostly diplomatically restrained hierarchical structures established in the 1990s towards more informal, flexible, and cohesive informal networks operating across national borders and leading to the emergence of unique coalitions across the Atlantic. The information exchange function of networks was complemented with the early warning function, while hierarchical system of connections tailored for reporting, monitoring, and steering was substituted with the one allowing for better exchange of information and deliberation. The emergence of homeland security networks was also driven by an increasing desire of policymakers to bring the discussions outside of the political context provided by formal negotiation teams. This was, for instance, the case of the High Level Contact Group on data protection, which sought to find synergies in European and U.S. approaches to data protection rather than in proving the supremacy of one over the other. However, the security environment is far from static, and the evolution of threats constantly challenges governments to catch up in their policy response. At the same time, regulatory and

institutional differences across the Atlantic are likely to complicate cooperation in this area. The controversies surrounding Snowdens revelations have demonstrated how fragile the relationship really is. This leaves the EU and the United States with three options representing different levels of ambition: continuing along the same trajectory, addressing the problems in a more proactive way, or attempting to find a new big transatlantic idea (see Table 2). Scenario 1: Business as Usual The main framework for transatlantic border management cooperation was established during the two successive Bush Administrations (e.g. the conclusion of three PNR agreements, the agreement on mutual legal assistance, Terrorist Finance Tracking Programme). The high level of ambition that dominated that period was sadly a consequence of the September 11, 2001 terrorist attacks in the United States. Even though the agenda was initially determined by unilateral U.S. actions, the commitment to resolving the conflicting issues has driven both EU and U.S. officials (even though issues like visa reciprocity between the United States and some EU countries remain unresolved). More than ten years later, the EU and the United States are dealing with the hiccups of the Bush era, albeit with much less determination. The agenda is still dominated by the discussion about the exchanges of personal information for law enforcement purposes. The trust between both sides is probably at its lowest, especially after the NSA secret surveillance programs became a subject of debates in major media outlets. There are also those in Europe who made attacks on the U.S. policies part of their political agenda. In the United States, the debate has unfolded along the traditional and simplified lines defined as security versus freedom, unfortunately embraced by U.S. President

The security environment is far from static, and the evolution of threats constantly challenges governments to catch up in their policy response.

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The early warning approach that previously prevented many potential problems from erupting needs to become a part of the transatlantic DNA.

Barack Obama. While controversies are piling up, there is nowhere to look for solutions, with each side focused too much on solving its own problems. It is worrying, therefore, that very little progress was made to prevent conflicts from occurring or to minimize their impact. One area where cooperation is moving forward is the fight against cybercrime marked by the establishment of the EU-U.S. Working Group on Cybersecurity and Cybercrime. But given the speed with which the international security environment evolves and at which threats multiply, sticking to this approach focused only at dealing with issues at hand might have negative implications for the resilience of transatlantic security architecture in the long term. Scenario 2: Patching Up A slightly more ambitious option would be to seriously approach the problematic issues, deal with the structural problems at hand (e.g. legislative and regulatory divergence, clarifying the concepts and language, etc.) and introduce resilience into transatlantic policymaking. The early warning approach that previously prevented many potential problems from erupting needs to become a part of the transatlantic DNA. But the transatlantic framework also needs to be able to bounce back when it gets temporarily upset by revelations like the one about the NSA secret surveillance program. In that sense, resolving the ongoing debates on the EU-U.S. agreement on personal data transfers, visa reciprocity, or travel facilitation is long overdue. This, however, is unlikely to happen in an immediate future dominated by the debate about appointments for the EUs new top leadership and the mid-term elections in the United States. In medium term, a patching up approach might keep both sides afloat but will not send the strong political message that this relationship requires. In that sense, the on-going negotiations of the Transatlantic Trade and Investment Partnership represents a missed opportunity to embrace a

broader security agenda with regard to mobility or digital economy. Scenario 3: Big Idea The main problem with the EU-U.S. homeland security cooperation and probably one of the reasons why the patching up scenario is most realistic for the time being is that it lacks a common purpose and vision. The EU-U.S. dialogue on security issues is not driven by a specific strategic objective but rather by the accumulation of individual aims determined by current domestic concerns. Consequently, the United States leads the debate on security and the EU on values none of which are in fact conflicting but which give the impression of a broadening division across the Atlantic. What is needed, therefore, is defining a purpose for EU-U.S. cooperation not separately but jointly. Why is it important for EU and United States to work together? The answer to this question needs to go beyond the common evocation of the attachment to the same values or the need to face a common enemy. These can be too easily dismissed. What the EU and the United States need is to take a step back and look at the drawing board with a fresh eye. The EU Area of Freedom, Security, and Justice did not emerge overnight but is an outcome of the process that took decades to conclude. In a similar vein, the discussion about Transatlantic Homeland Security Community with all its dimensions such as civil liberties, law enforcement, and the rule of law is long overdue. The idea of creating a transatlantic common space was suggested already in 2008 by the Informal High-Level Advisory Group on the Future of European Home Affairs Policy (the Future Group) but fell on deaf ears. The debate about the next multiannual justice and home affairs program provides a good opportunity to revive this subject. One format to consider could be the establishment of a joint EU-U.S. homeland security

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The German Marshall Fund of the United States

Table 2: Different Scenarios for Transatlantic Border Security Cooperation Level of Ambition Low Medium
Patching Up Cooperation in specific policy areas is deepened due to agreement on principles and partly resolving structural problems; focus on transatlantic aspect is taken into account Promotion of the Budapest Convention model Risk-based model in border management Transatlantic mobility scheme that would include for example mutual recognition or a joint Trusted Traveller Programme Information exchange, including between law enforcement agencies

High
Big Idea Cooperation in specific areas is a part of a broader master plan; progress is made toward resolving structural problems; transatlantic dimension is the center of attention Capacity building in third countries: security sector reform, border missions; Global rules on privacy and surveillance Transatlantic homeland security community: joint risk assessment; transatlantic smart border (TTP, entryexit); freedom of movement, access to justice

Business as Usual Cooperation in specific policy areas continues without any Scenario change in approaches; main structural problems remain unresolved; focus on domestic aspects is predominant

Areas of Counterterrorism Cooperation at Aviation security Global Level Areas of Cooperation at Transatlantic Level
Visa policy and ESTA Data protection regime Mutual legal assistance and extradition agreement Cybercrime

Border management projects Investment in research and underway (e.g. Mexico in the capabilities United States, smart borders Individual Investigation of obstacles to Efforts in EU) cooperation

Political support for necessary changes to domestic legislation

Speed bumps Network politics Unethical policies and instruments Militarization Limited resources

Accelerators Trust Transparency and legitimacy of the process Respect for human rights and rule of law

institute either as a body or a consortium that brings together major stakeholder from both sides of the Atlantic (scholars and practitioners in the field of law, security, and trade). The analysis undertaken by particular teams in such an institute would provide the background and feed discussions between U.S. and EU policymakers, based on facts and objective analysis rather than

political analysis alone. It would also provide a more comprehensive assessment of the challenges and policy responses as opposed to the piecemeal approach prevailing at the moment (i.e. individual studies are commissioned, but the linkages between them are hardly explored and taken to the next level). Such a structure would also closely cooperate with other stakeholders, including the

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Transatlantic Legislators Dialogue or specific law enforcement agencies. This solution could help to take the discussion out of the political context and focus primarily on the content. A new initiative at the political level is even more pertinent given that transatlantic relations are not among the priorities for think tanks, in particular in the United States. The discussion about EU-U.S. cooperation on border security management is far from over not because there is little will to resolve the problems but simply because the problems will keep coming up. The ongoing negotiations of the

Transatlantic Trade and Investment Partnership provide an opportunity to address some of those questions, in particular concerning the potential benefits of transatlantic mobility and challenges to its implementation. Looking into the future, it would be a mistake to insist on a full conversion of European and U.S. approaches to border security. There is a lesson to be learnt from the past and current debates: collectively, the EU-U.S. partnership becomes stronger each time the United States exposes the weakness of European muscles, and when Europeans act as a U.S. conscience.

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The German Marshall Fund of the United States

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