20
BORDER SECURITY POLICY PAPER SERIES SPEED BUMPS AND ACCELERATORS Emerging Issues in Transatlantic Border Management PATRYK PAWLAK

Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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BORDER SECURITY POLICY PAPER SERIES

SPEED BUMPS AND ACCELERATORS

Emerging Issues in Transatlantic Border Management

PATRYK PAWLAK

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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copy 2014 Te German Marshall Fund o the United States All rights reserved

No part o this publication may be reproduced or transmitted in any orm or by any means without permission in writing

rom the German Marshall Fund o the United States (GMF) Please direct inquiries to

Te German Marshall Fund o the United States

1744 R Street NW

Washington DC 20009

1 202 683 2650

F 1 202 265 1662

E inogmusorg

Tis publication can be downloaded or ree at httpwwwgmusorgpublicationsindexcm Limited print

copies are also available o request a copy send an e-mail to inogmusorg

About the International Border Security Forum

Te German Marshall Fund o the United States (GMF) hosts the International Border Security Forum to enhance under-

standing between senior multilateral policymakers and build cooperation on the most pressing border security challenges

Tis program brings together political level representatives rom the member states o the European Union the United

States Canada and Israel Te ormat o the meetings is an off-the-record conversation among a small yet highly selective

group o senior policymakers and designated senior experts Te accompanying series o policy brie deepens the discus-

sion and provides inormation to the larger border security community

About GMF

Te German Marshall Fund o the United States (GMF) strengthens transatlantic cooperation on regional national and

global challenges and opportunities in the spirit o the Marshall Plan GMF does this by supporting individuals and institu-

tions working in the transatlantic sphere by convening leaders and members o the policy and business communities

by contributing research and analysis on transatlantic topics and by providing exchange opportunities to oster renewed

commitment to the transatlantic relationship In addition GMF supports a number o initiatives to strengthen democra-

cies Founded in 1972 as a non-partisan non-profit organization through a gif rom Germany as a permanent memorial to

Marshall Plan assistance GMF maintains a strong presence on both sides o the Atlantic In addition to its headquarters in

Washington DC GMF has offices in Berlin Paris Brussels Belgrade Ankara Bucharest Warsaw and unis GMF also has

smaller representations in Bratislava urin and Stockholm

On the cover An airport at sunset copy Chalabalaistockphoto

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M983137983154983139983144 983090983088983089983092

By Patryk Pawlak 2

1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office

2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF

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

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I983150983156983154983151983140983157983139983156983145983151983150

1

Whether dealing wi

migratory pressure

or strengthening th

capacities of secur

sector a required

response often

goes beyond purelydiplomatic efforts a

includes cooperatio

on certain aspects

internal security

The aim of the border management policieshas 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 statersquos security

mechanisms are tested before an external problem

becomes an internal one The security functions

are then performed by agencies other than border

guards mdash 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 approachConsequently 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 ldquosmart bordersrdquo 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 originand 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 (eg 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 betweeninternal 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 theirmeeting 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 EUrsquos 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

111 billion in 2011 to 145 billion passengers in2016 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 mdash 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 interestsincluding 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

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Designing efficient

border management

policies is increasingly

difficult and is a

constantly moving

target

to $600 billion (5 percent of global GDP)1

It doesnot come as a surprise therefore that the focus on

the fight against financially motivated crime (eg

counterfeiting cybercrime etc) is a priority

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 toprojects that explore and evaluate potential benefits

mdash in terms of efficiency cost effectiveness and

accuracy mdash 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 surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC

or racial and ethnical profiling Reconciling thesetwo 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 theabsence 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 drug-

traffickers and gangs in the north translate into

problems on the US-Mexico borders and within

the US 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 ldquodefenserdquo before anexternal issue becomes an internal problem in the

transatlantic area

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2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

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4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

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6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 2: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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copy 2014 Te German Marshall Fund o the United States All rights reserved

No part o this publication may be reproduced or transmitted in any orm or by any means without permission in writing

rom the German Marshall Fund o the United States (GMF) Please direct inquiries to

Te German Marshall Fund o the United States

1744 R Street NW

Washington DC 20009

1 202 683 2650

F 1 202 265 1662

E inogmusorg

Tis publication can be downloaded or ree at httpwwwgmusorgpublicationsindexcm Limited print

copies are also available o request a copy send an e-mail to inogmusorg

About the International Border Security Forum

Te German Marshall Fund o the United States (GMF) hosts the International Border Security Forum to enhance under-

standing between senior multilateral policymakers and build cooperation on the most pressing border security challenges

Tis program brings together political level representatives rom the member states o the European Union the United

States Canada and Israel Te ormat o the meetings is an off-the-record conversation among a small yet highly selective

group o senior policymakers and designated senior experts Te accompanying series o policy brie deepens the discus-

sion and provides inormation to the larger border security community

About GMF

Te German Marshall Fund o the United States (GMF) strengthens transatlantic cooperation on regional national and

global challenges and opportunities in the spirit o the Marshall Plan GMF does this by supporting individuals and institu-

tions working in the transatlantic sphere by convening leaders and members o the policy and business communities

by contributing research and analysis on transatlantic topics and by providing exchange opportunities to oster renewed

commitment to the transatlantic relationship In addition GMF supports a number o initiatives to strengthen democra-

cies Founded in 1972 as a non-partisan non-profit organization through a gif rom Germany as a permanent memorial to

Marshall Plan assistance GMF maintains a strong presence on both sides o the Atlantic In addition to its headquarters in

Washington DC GMF has offices in Berlin Paris Brussels Belgrade Ankara Bucharest Warsaw and unis GMF also has

smaller representations in Bratislava urin and Stockholm

On the cover An airport at sunset copy Chalabalaistockphoto

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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155

E983149983141983154983143983145983150983143 I983155983155983157983141983155 983145983150 T983154983137983150983155983137983156983148983137983150983156983145983139 B983151983154983140983141983154 M983137983150983137983143983141983149983141983150983156983089

B983151983154983140983141983154 S983141983139983157983154983145983156983161 P983151983148983145983139983161 P983137983152983141983154983155

M983137983154983139983144 983090983088983089983092

By Patryk Pawlak 2

1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office

2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF

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

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I983150983156983154983151983140983157983139983156983145983151983150

1

Whether dealing wi

migratory pressure

or strengthening th

capacities of secur

sector a required

response often

goes beyond purelydiplomatic efforts a

includes cooperatio

on certain aspects

internal security

The aim of the border management policieshas 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 statersquos security

mechanisms are tested before an external problem

becomes an internal one The security functions

are then performed by agencies other than border

guards mdash 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 approachConsequently 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 ldquosmart bordersrdquo 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 originand 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 (eg 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 betweeninternal 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 theirmeeting 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 EUrsquos 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

111 billion in 2011 to 145 billion passengers in2016 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 mdash 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 interestsincluding 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

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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Designing efficient

border management

policies is increasingly

difficult and is a

constantly moving

target

to $600 billion (5 percent of global GDP)1

It doesnot come as a surprise therefore that the focus on

the fight against financially motivated crime (eg

counterfeiting cybercrime etc) is a priority

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 toprojects that explore and evaluate potential benefits

mdash in terms of efficiency cost effectiveness and

accuracy mdash 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 surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC

or racial and ethnical profiling Reconciling thesetwo 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 theabsence 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 drug-

traffickers and gangs in the north translate into

problems on the US-Mexico borders and within

the US 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 ldquodefenserdquo before anexternal issue becomes an internal problem in the

transatlantic area

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M983151983138983145983148983145983156983161 983137983150983140 T983141983139983144983150983151983148983151983143983161

2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

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6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 3: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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E983149983141983154983143983145983150983143 I983155983155983157983141983155 983145983150 T983154983137983150983155983137983156983148983137983150983156983145983139 B983151983154983140983141983154 M983137983150983137983143983141983149983141983150983156983089

B983151983154983140983141983154 S983141983139983157983154983145983156983161 P983151983148983145983139983161 P983137983152983141983154983155

M983137983154983139983144 983090983088983089983092

By Patryk Pawlak 2

1 This paper is partly based on the discussions in the framework of the International Border Security Forum of the GermanMarshall Fund of the United States (GMF) mdash Warsaw Office

2 The author would like to thank Earl Fry Ralf Roloff and Stephen Schneider for comments on earlier drafts of this paperAll mistakes are those of the author The views expressed in this paper are those of the author only and are not an officialposition of the EU Institute for Security Studies or of GMF

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

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I983150983156983154983151983140983157983139983156983145983151983150

1

Whether dealing wi

migratory pressure

or strengthening th

capacities of secur

sector a required

response often

goes beyond purelydiplomatic efforts a

includes cooperatio

on certain aspects

internal security

The aim of the border management policieshas 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 statersquos security

mechanisms are tested before an external problem

becomes an internal one The security functions

are then performed by agencies other than border

guards mdash 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 approachConsequently 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 ldquosmart bordersrdquo 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 originand 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 (eg 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 betweeninternal 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 theirmeeting 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 EUrsquos 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

111 billion in 2011 to 145 billion passengers in2016 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 mdash 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 interestsincluding 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

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Designing efficient

border management

policies is increasingly

difficult and is a

constantly moving

target

to $600 billion (5 percent of global GDP)1

It doesnot come as a surprise therefore that the focus on

the fight against financially motivated crime (eg

counterfeiting cybercrime etc) is a priority

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 toprojects that explore and evaluate potential benefits

mdash in terms of efficiency cost effectiveness and

accuracy mdash 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 surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC

or racial and ethnical profiling Reconciling thesetwo 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 theabsence 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 drug-

traffickers and gangs in the north translate into

problems on the US-Mexico borders and within

the US 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 ldquodefenserdquo before anexternal issue becomes an internal problem in the

transatlantic area

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M983151983138983145983148983145983156983161 983137983150983140 T983141983139983144983150983151983148983151983143983161

2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

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4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

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1

Whether dealing wi

migratory pressure

or strengthening th

capacities of secur

sector a required

response often

goes beyond purelydiplomatic efforts a

includes cooperatio

on certain aspects

internal security

The aim of the border management policieshas 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 statersquos security

mechanisms are tested before an external problem

becomes an internal one The security functions

are then performed by agencies other than border

guards mdash 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 approachConsequently 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 ldquosmart bordersrdquo 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 originand 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 (eg 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 betweeninternal 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 theirmeeting 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 EUrsquos 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

111 billion in 2011 to 145 billion passengers in2016 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 mdash 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 interestsincluding 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

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Designing efficient

border management

policies is increasingly

difficult and is a

constantly moving

target

to $600 billion (5 percent of global GDP)1

It doesnot come as a surprise therefore that the focus on

the fight against financially motivated crime (eg

counterfeiting cybercrime etc) is a priority

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 toprojects that explore and evaluate potential benefits

mdash in terms of efficiency cost effectiveness and

accuracy mdash 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 surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC

or racial and ethnical profiling Reconciling thesetwo 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 theabsence 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 drug-

traffickers and gangs in the north translate into

problems on the US-Mexico borders and within

the US 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 ldquodefenserdquo before anexternal issue becomes an internal problem in the

transatlantic area

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2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

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4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 5: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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Designing efficient

border management

policies is increasingly

difficult and is a

constantly moving

target

to $600 billion (5 percent of global GDP)1

It doesnot come as a surprise therefore that the focus on

the fight against financially motivated crime (eg

counterfeiting cybercrime etc) is a priority

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 toprojects that explore and evaluate potential benefits

mdash in terms of efficiency cost effectiveness and

accuracy mdash 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 surveillance1 Lewis J A and Baker S (2013) The Economic Impact of Cyber-crime and Cyber Espionage July 2013 Center for Strategic andInternational Studies Washington DC

or racial and ethnical profiling Reconciling thesetwo 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 theabsence 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 drug-

traffickers and gangs in the north translate into

problems on the US-Mexico borders and within

the US 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 ldquodefenserdquo before anexternal issue becomes an internal problem in the

transatlantic area

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2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

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6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

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2

Governments tend

see the opportuniti

offered by new

technologies as a

solution to all their

problems

An important component of bordermanagement 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 facilitatetrade 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 mdash as defined by

the Bush Administration in 2002 mdash was for ldquothe

borders of the futurerdquo to ldquointegrate actions abroad

to screen goods and people prior to their arrival

in sovereign US territoryrdquo Reliance on the state-of-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 (eg 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 travelerprograms that allow for expedited screening of

low-risk passengers TSA Pretrade (for passengers

traveling domestically within the United States and

for international travel when departing from a US

airport that participates in TSA Pretrade) Global

Entry (allows expedited clearance for pre-approvedlow-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 EUrsquos own Passenger

Name Record system None of these measures

has been fully introduced yet although the EU

made substantial progress toward modernizingits border management system It upgraded the

existing mechanisms (eg second generation of the

Schengen Information System SIS II) increased

the competence of specific internal security

agencies (eg 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 testbetween 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

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

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4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 7: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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he nature of flaws and

potential threats has

also gradually evolved

It is no longer about

making sure that third

ountry nationals do not

cross borders illegallybut increasingly about

preventing countryrsquos

own nationals from

posing a danger

Second the roll-outof new systems is

increasingly questioned

for the reason of their

economic and societal

consequences The costs

of the implementation

of the EntryExit System

and the Registered

Traveller Programme

(RTP) would need to

be covered by member

states with the supportof the European Union

This is reflected in

the next multi-annual

financial framework for

2014-20 which includes

euro4648 billion for the

Internal Security Fund

(ISF) that finances new

large-scale IT systems

and an additional euro822

million set aside for the

management of existinglarge scale-IT systems

(Schengen Information

System II Visa

Information System

and EURODAC) and

the eu-LISA Past

experiences are also

complicating the task

for advocates of these new technologies In 2010

the implementation cost of the SIS II rose to euro135

million from the euro23 million foreseen in 2001

Furthermore the argument regarding the negative

impact of those instruments on fundamental

freedoms mdashin particular on the right to privacy mdash

is constantly made by civil liberties organizations

Finally 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

countryrsquos own nationals from posing a danger

The EU Terrorism Situation and Trend Report for

2013 for instance highlights the effort of several

EU countries in addressing their own indigenous

terrorist problem among separatist movements

single-issue terrorists or rightleft wing terrorism

Box 1 Foreign Fighters and Returnees from Syria

Several security agencies focus on addressing the threats to internal security

posed by Jihadists travelling to Syria and other hotspots According to the

International Centre for the Study of Radicalisation up to 11000 individuals

from 74 nations have become opposition fighters in Syria It is estimated that

the number among Western Europeans has more than tripled from (up to) 600

in April to 1900 in December 2013 mdash which represent up to 18 percent of the

foreign fighter population in Syria Official data released by individual countries

confirm this growing trend The French and Danish governments have doubled

their estimates since the beginning of 2013 the Belgian British and German

governments have quadrupled their numbers These figures include those who

are currently present as well as those who have since returned home been

arrested or killed Other identified individuals come from Southeast Asia North

America Australia and (non-Arab) Africa The most prominent non-EuropeanWestern countries are Australia (between 23 and 205 individuals) Canada

(between 9 and 100) and the United States (between 17 and 60) Only about 20

percent of the sources stated group affiliations primarily to Jabhat al-Nusra and

the Islamic State of Iraq and al-Sham (ISIS) mdash the two militant opposition groups

with close links to al Qaeda

According to the EU Counterterrorism Coordinator the response to this challenge

needs to combine various approaches

bull Legal cooperation including adequacy of legal frameworks criminal

response and the use of administrative sanctions and information

exchange in the context of investigation and prosecution

bull De-radicalization and humanitarian assistance projects as a viable

alternative for those interested in helping in Syria

bull Border management instruments including the implementation of the

EU PNR system increased and harmonized use of SIS alert system and

developing risk indicators

bull Cooperation with priority third countries including Turkey Jordan Egypt

Libya Western Balkans and capacity building assistance

Sources International Centre for the Study of Radicalisation (wwwicsrorg ) EU official

documents

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

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4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

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6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 8: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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that can move freely across borders In most of suchcases 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 US citizens

in conflicts or terrorist attacks in other parts of

the world mdash 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 2013The 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

1937 individuals and is quite significant given thatidentifying 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 thesubject 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 theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

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6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 9: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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The United States

and countries of the

European Union have

made numerous

modifications to

their migration

policies including theadjustments in their

visa policies or identity

verification methods

Despite the fact that the debates aboutmigration seem to focus on different

issues in Europe and in the United States

mdash Europeans discuss how to limit the cases of

illegal border crossings whereas Americans focus

on dealing with immigrants that are already on

their territory mdash both sides still share a number

of common challenges According to the Pew

Research Center report on changing patterns

of global migration released in December 2013

Europe and North America are the top two

destination regions of international migrants

In the United States the number of immigrantsamounted in 2013 to 46 million with 55 percent

of all foreign-born people living in the United

States coming from Latin American and the

Caribbean countries According to the same report

the share of international migrants in Europe

remained constant although the composition

of this group has changed considerably with a

substantial number

of intra-European

migrations occurring

as a consequence

of successiveenlargements of the

European Union

Nevertheless a

considerable number

of migrants come

from countries like

Morocco Algeria

Turkey India or

refugee-sending

countries like

Somalia or Iraq

The composition

of this group has

changed over the past

few years with the

continuous instability in Middle East and NorthAfrica

Over the past decade 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 through

the introduction of new technologies including

biometric identifiers in travel documents or

as a part of the visa application procedure But

these methods provide only a partial remedy in

the case of individuals who decide to cross theborders illegally The recourse to traditional border

protection methods like increased patrols or

strengthening the infrastructure (ie the fence or

sensors along the US-Mexican border) also help

to address this challenge but require significant

human and financial resources According to the

Frontex Annual Risk Analysis in 2012 there was a

49 percent drop in illegal border crossings between

M983145983143983154983137983156983145983151983150 983137983150983140 T983141983139983144983150983151983148983151983143983161

3

Figure 1 Concerns about Immigration in the United States and Selected

EU countries

Source Transatlantic Trends 2013 Authorrsquos compilationNote EU-11 includes France Germany Italy the Netherlands Poland Portugal RomaniaSlovakia Spain Sweden and the United Kingdom

0

10

20

30

40

50

60

70

80

90

100

Legal immigration

Illegal immigration

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 10: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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The shifting migrat

routes and high

expectations for se

governance expres

by citizens toward t

governments provid

impulse for increasinvestment in secu

and surveillance

technologies for bo

protection

Turkey and Greece compared to 2011 (the so-calledEastern 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 ldquodramatic reductions in arrivals of new

unauthorized immigrantsrdquo from Mexico whichcan be partly explained by the huge investment in

border surveillance infrastructure (eg sensors

fence)2 The US 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 1150 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 migrantsrsquo 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 EUrsquos biggest research and innovation

program ever with nearly euro80 billion of funding

available over 7 years (2014 to 2020) For instance

the previously funded projects focused onsurveillance 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 undocu-mented Mexicans left the United States than went there illegally

(UAVs) to build a common operating picturethrough detection localization identification and

tracking of targets that can be classified as a threat

movingentering 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 theEastern 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 thelegal 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 euro22

million for a project implemented in cooperation

with Interpol and the Libyan authorities to maketangible 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

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

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O F F I C E S

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wwwgmfusorg

Page 11: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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lost passports andhelp identify wanted

persons including

suspected terrorists

and international

criminals Similarly

the US authorities

through the Merida

Initiative mdash a

counterdrug and

anticrime assistance

package for Mexico

and CentralAmerica mdash support

training programs

for police forces in

Mexico including in

modern investigative

techniques

promoting a culture

of lawfulness and

implementing key

justice reforms

Furthermore

the US Agencyfor International

Development

(USAID) supports

Mexican efforts

to mitigate the

community-level impact of crime and violence and

to implement safeguards for citizensrsquo rights in the

criminal justice constitutional reforms

Box 2 European Border Surveillance System (EUROSUR)

The first phase of EUROSUR was officially launched on December 2 2013 with the

objective to reinforce control of the Schengen external borders It will initially be

operational in 19 countries and in a total of 30 countries as of December 1 2014

EUROSUR will establish a mechanism through which member states and the EU

border agency Frontex will be able to share operational information and cooperate

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

compliance with fundamental rights and obligations under international law

The system employs intelligence-driven approach to border surveillance The

backbone of EUROSUR is formed by ldquonational coordination centersrdquo via which

all national authorities with a responsibility for border surveillance (eg border

guard police coast guard navy) are required to cooperate and to coordinate their

activities

Frontex plays an important role in bringing together and analyzing the ldquoEuropean

situational picturerdquo information collected by member states thereby detecting

changing routes or new methods used by criminal networks This European

situational picture also contains information collected during Frontex joint

operations and on the pre-frontier area The external land and sea borders have

been divided into border sections and a low medium or high impact level is

being attributed to each of them similar to a traffic light This approach identifies

hotspots at the external borders with a standardized reaction at the national and

if needed European level

Data may be collected from ship reporting systems in accordance with their

respective legal bases satellite imagery and sensors mounted on any vehicle

vessel or other craft Early detection is also possible thanks to cooperation with

third countries in various networks Seahorse Atlantic (with Morocco Mauretania

Gambia Senegal Cap Verde and Guinea Bissau) or Black Sea Cooperation Forum

(with Ukraine Georgia Russia and Turkey)

Source European Commission

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

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Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 12: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

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The difficulty with effective bordermanagement stems also from the non-

physical 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 (eg 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 duringthe Seoul Cyber Conference in October 2013

described the cyberspace as the mirror of our

societies and of our worldrdquo He drew an accurate

comparison to challenges in cyberspace by statingldquoPirates are there Terrorists are there Criminals are

there Spies are thererdquo 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

mdash although possible in theory mdash 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 (ie no physical controls hence limited

T983144983154983141983137983156983155 983159983145983156983144983151983157983156 B983151983154983140983141983154983155

4

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 CyberCrimeEAP 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 AzerbaijanMoldova 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 (eg 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

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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 andadds 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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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 13: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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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 andadds 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)

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520

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deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13

The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15

institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 14: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1420

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 11

Despite advantage

they may offer sec

and surveillance

technologies raise

questions about th

ethical aspects of t

use and their impa society and its valu

including accounta

and transparency

human dignity and

good governance

As the challenges described in previoussections demonstrate the separation

between law enforcement border

management intelligence and defense mdash while

still present in legal systems and institutions mdash 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 andDefense

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 mdash development diplomacy and defense

mdash 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 theexisting international laws and norms for instance

those enshrined in the International Convention on

Civil and Political Rights are fully respected

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 (ie

development-security civil liberties-security)

Engaging citizens requires convincing them thatmore 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 decision-

making 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 questionsabout 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

C983154983151983155983155-C983157983156983156983145983150983143 I983155983155983157983141983155

S983152983141983141983140 B983157983149983152983155 983137983150983140 A9831399831399831419831489831419831549831379831569831519831549831555

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512

deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13

The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15

institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 15: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1520

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315512

deny using profilingtechniques) and

sharing information

between immigration

intelligence and

law enforcement

agencies led to

protests from data

protection advocates

The Orwellian vision

of ldquoBig Brotherrdquo

controlling our

every move becameeven more real with

Edward Snowdenrsquos

revelations about the

scope of surveillance

programs managed

by the United States

National Security Agency At the same time the

uncertainty surrounding the use of UAVs by

governments for surveillance purposes and their

impact on privacy highlight the challenges for

existing legal frameworks The dual nature of

UAVs which can also be used to strike militarytargets further complicates the assessment of this

technology Transatlantic Trends 2013 reports

that 71 percent of Americans approve of using

drones to find or kill suspected enemies in places

like Afghanistan or Pakistan while 53 percent of

Europeans disapprove In addition to ensuring

that the use of drones complies with existing

legal frameworks and ethical standards it is also

necessary to take measures against possible abuse

of these technologies that could adversely influence

the level of public trust Human rights groups are

also skeptical about the humanitarian nature of

systems like Eurosur which lists saving migrants

in the open sea as one of its objectives With regard

to the policy development process itself a broad

reliance on transgovernmental informal networks

between US and European policymakers (eg Task

Forces High-Level Working Groups etc) raises

the question about legitimacy and transparency

given that these networks operate beyond any legal

mandate provided in the treaties

Table 1 Speed Bumps and Accelerators in Transatlantic Cooperation

Cross-cutting

issue

Speed bumps Accelerators

Developmentdiplomacy anddefense

bull Militarization andsecuritization of discourse

bull Limited resourcesbull Divergence of prioritiesbull External shocks

bull Vision and willingness tocooperate

bull Trustbull Support from recipient

countries

Multistakeholderapproach

bull Turf wars and limited cross-agency cooperation

bull Network politics Ideologicalapproaches (ie anti-Americanism)

bull Political calendar

bull Enhanced legitimacy andtransparency

bull Improved cross-agencycooperation

bull Early warning and dialogue

Ethics civilliberties andhuman rights

bull Abuse of power andmechanisms

bull Unethical policies andinstruments

bull Respect for rule of law andhuman rights

bull Transparency and legitimacy ofthe process

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13

The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15

institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 16: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1620

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 13

The security

environment is far

static and the evol

of threats constant

challenges governm

to catch up in their

policy response

Transatlantic cooperation on bordermanagement 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 mdash

with border management policies as its foundations

mdash 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 periodwhen EU-US 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 hierarchicalsystem 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 US approaches to data protection

rather than in proving the supremacy of one overthe 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 arelikely to complicate cooperation in this area The

controversies surrounding Snowdenrsquos 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 bordermanagement cooperation was established during

the two successive Bush Administrations (eg

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

US actions the commitment to resolving the

conflicting issues has driven both EU and US

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 US

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 US President

S983139983141983150983137983154983145983151983155 983142983151983154 F983157983156983157983154983141 C983151983151983152983141983154983137983156983145983151983150

6

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15

institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 17: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1720

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315514

Barack Obama While controversies are piling upthere 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-US

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 negativeimplications 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 (eg 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 ldquobounce backrdquo

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-US 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 EUrsquos new top leadership

and the mid-term elections in the United StatesIn 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 ordigital economy

Scenario 3 Big Idea

The main problem with the EU-US homeland

security cooperation mdash and probably one of the

reasons why the patching up scenario is most

realistic for the time being mdash is that it lacks a

common purpose and vision The EU-US 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 thedebate on security and the EU on values mdash 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-US cooperation mdash 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 EUand 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 mdash with all its dimensions such as civil

liberties law enforcement and the rule of law mdash is

long overdue The idea of creating a ldquotransatlantic

common spacerdquo 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-US homeland security

The early warning

approach that

previously prevented

many potential

roblems from erupting

needs to become a

art of the transatlanticDNA

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1820

S983152983141983141983140 B983157983149983152983155 983137983150983140 A983139983139983141983148983141983154983137983156983151983154983155 15

institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

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institute mdash either as a body or a consortium that

brings together major stakeholder from both

sides of the Atlantic (scholars and practitioners inthe field of law security and trade) The analysis

undertaken by particular teams in such an

institute would provide the background and feed

discussions between US 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 piecemealapproach prevailing at the moment (ie 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

Table 2 Different Scenarios for Transatlantic Border Security Cooperation

Level of

AmbitionLow Medium High

Scenario

Business as UsualCooperation in specific policyareas continues without anychange in approaches mainstructural problems remainunresolved focus on domesticaspects is predominant

Patching UpCooperation in specificpolicy areas is deepened dueto agreement on principlesand partly resolvingstructural problems focus ontransatlantic aspect is takeninto account

Big IdeaCooperation in specific areasis a part of a broader ldquomasterplanrdquo progress is madetoward resolving structuralproblems transatlanticdimension is the center ofattention

Areas of

Cooperation at

Global Level

bull Counterterrorismbull Aviation security

bull Promotion of the BudapestConvention model

bull Risk-based model in bordermanagement

bull Capacity building in thirdcountries security sectorreform border missions

bull Global rules on privacy andsurveillance

Areas of

Cooperation at

Transatlantic

Level

bull Visa policy and ESTAbull Data protection regimebull Mutual legal assistance and

extradition agreementbull Cybercrime

bull Transatlantic mobility schemethat would include forexample mutual recognitionor a joint Trusted TravellerProgramme

bull Information exchangeincluding between lawenforcement agencies

bull Transatlantic homelandsecurity community jointrisk assessment transatlanticsmart border (TTP entry-exit) freedom of movementaccess to justice

Individual

Efforts

bull Border management projectsunderway (eg Mexico in theUnited States smart borders

in EU)

bull Investment in research andcapabilities

bull Investigation of obstacles tocooperation

bull Political support fornecessary changes to

domestic legislation

Speed bumps

bull Network politics

bull Unethical policies and instruments

bull Militarization

bull Limited resources

Accelerators

bull Trust

bull Transparency and legitimacy of the

process

bull Respect for human rights and rule of

law

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 1920

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Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

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8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

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T983144983141 G983141983154983149983137983150 M983137983154983155983144983137983148983148 F983157983150983140 983151983142 983156983144983141 U983150983145983156983141983140 S98315698313798315698314198315516

Transatlantic Legislatorsrsquo Dialogue or specific lawenforcement 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-US cooperation on

border security management is far from over

mdash 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 Partnershipprovide 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 US approaches to border

security There is a lesson to be learnt from the

past and current debates collectively the EU-US

partnership becomes stronger each time the United

States exposes the weakness of European muscles

and when Europeans act as a US conscience

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg

Page 20: Speed Bumps and Accelerators: Emerging Issues in Transatlantic Border Management

8122019 Speed Bumps and Accelerators Emerging Issues in Transatlantic Border Management

httpslidepdfcomreaderfullspeed-bumps-and-accelerators-emerging-issues-in-transatlantic-border-management 2020

O F F I C E S

W983137983155983144983145983150983143983156983151983150 bull B983141983154983148983145983150 bull P983137983154983145983155 bull B983154983157983155983155983141983148983155B983141983148983143983154983137983140983141 bull A983150983147983137983154983137 bull B983157983139983144983137983154983141983155983156 bull W983137983154983155983137983159 bull T983157983150983145983155

wwwgmfusorg