Transatlantic flight fights: multi-level governance, actor entrepreneurship and international anti-terrorism cooperation

ABSTRACT

Anti-terrorism cooperation has sparked a series of transatlantic conflicts. Many popular accounts look to differing policy preferences between US and European capitals to explain these disagreements. This article, by contrast, contends that these disputes are often rooted in internal multi-level governance processes within Europe that present different opportunity structures for actors to influence international debates. The case of airline passenger name records offers a unique within-case comparison akin to a natural experiment with which to examine the multi-level governance hypothesis.

KEYWORDS:

• Transatlantic relations
• terrorism
• privacy
• multi-level governance

ACKNOWLEDGMENTS

This article benefited tremendously from the comments and suggestions of Chad Damro, Thad Dunning, Richard Deeg, Orfeo Fioretos, Susanne Lutz, Julie Lynch, Mark Pollack, Elliot Posner, Sara Watson, Alasdair Young, the editorial team and the reviewers. I would also like to thank the participants at the University of Pennsylvania European Studies Seminar and the workshop – Ideas, Institutions and Interests in Transatlantic Regulatory Relations – held at the Free University, 17–18 June 17–18, 2008.

Notes

1. For examples of the press version of this argument see Webster (2004) and Pfaff (2002).

2. A natural experiment presents itself when subjects are ‘as-if’ randomly assigned to a treatment through social or political forces (Dunning, 2008). They help scholars make inferences as they hold many measurable confounding variables constant and allow for a focused examination of a key causal factor. In the case of airline passenger records, the Court intervention assigns a new institutional procedure. It is important to highlight that the Court did not rule on privacy grounds but on process. This limits the threat of endogeneity within the case study as the participants in the negotiation were not told how they should negotiate but rather under what procedure. Nevertheless, temporal comparisons often raise validity issues associated with learning or the revelation of private information. I attempt to address these issues within the case study. For an example of a natural experiment in a temporal comparison see (Cox et al., 2000).

3. It is worth noting that the Commission and the European Parliament play a significant role in first pillar decision-making while the Council of Ministers, which most closely reflects member state interests, dominates in the third pillar. For a discussion of the pillar structure within the EU see Wallace et al. (2005).

4. See, for example, Webster (2004) and Pfaff (2002).

5. Interview with European airline trade association official, Brussels. See also, Association of European Airlines (2007).

6. For a discussion of the pillar structure within the EU see Wallace et al. (2005).

7. See The Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data 95/46/EC, 1995 O.J. (L 281) 31.

8. See, for example, the decision of the Belgian data privacy authority from 19 January 2004, available at http://www.edri.org/edrigram/number2.2/bolkestein

9. The European Court of Justice, in the 2003 Lindqvist case, ruled that the European Convention on Human Rights protects individual privacy within Europe. See Lindqvist C-101/01, 6 November 2003.

10. The role of the European Court of Justice in the external affairs of the European Union has not yet been adequately studied. In issue areas ranging from competition policy to trade, the Court has defined the international authority of the EU. PNR is an important case as it demonstrates an instance when the Court rejected a broad interpretation of the Commission's authority in external relations.

11. See European Court of Justice, C-317/04 and C-318/04, 30 May 2006. See also Clark (2006).

12. For more on natural experiments see note 2.

13. A comprehensive review of the privacy implications of the agreement is available at http://www.statewatch.org/pnrobservatory.htm

14. The progress of the initiative is detailed in Council of Ministers, Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes – State of play, Brussels, 29 May 2008.

15. This position was confirmed in an interview by a European Parliamentarian active in the issue area, Brussels.

16. For the general push by government security bureaucracies to expand surveillance see Lyon (2004).