Airline passenger data - the thin end of the wedge

Statewatch reports that the Spanish government is now proposing a Council Directive to require all carriers into and out of the EU to give all passenger information all the time to law enforcement agencies as yet unspecified. Though no doubt the usual bogus and opportunistic arguments about fighting terrorism will be invoked, the Spanish have at least come straight out in the recital to the draft directive and said the measure is to prevent illegal immigration.

The proposal would require airlines to provide, at the time of boarding, information about passengers (passport numbers, names, date and place of birth) to the "authorities responsible for carrying out border checks", a potentially very wide bunch of agencies. Further, carriers would be obliged to report to these 'authorities' within 48 hours if any non-EU nationals who have not returned to their country of origin or gone on to a third country. This reporting obligation is so broad and logistically impossible to meet, and downright illogical, it boggles the mind. I won't even go into the practical problems with it - anyone who's ever been on a plane can see at least a half a dozen reasons why such a system would continually throw up 'false positives' in the search for illegal immigrants. And of course the idea that various agencies should get their hands on everyone's travel plans in order to try and stop some non-Europeans from absconding, makes me wonder why anyone ever bothered to put the word 'proportionate' in to the European Convention on Human Rights.

The article on how and what the carriers are expected to do is amazingly brief - smacks of legislation scribbled on the back of a napkin - but the one on sanctions for carriers who fail to comply is very long, very detailed, and very tough. It even details the minimum fines for non-compliant carriers and goes on to endorse other sanctions such as "immobilisation, seizure and confiscation of the means of transport or temporary suspension or withdrawal of the operating licence". The next article says the information will only be used for border checks and will be deleted straight after - why do I not believe a word of this? Does anyone think national law enforcement agencies and Europol won't use their familiar arguments (well, you're retaining the data already, so why don't you just hand it over to us? we're the good guys.) to pool the data and engage in fishing expeditions?

Anyway, I'm afraid outrage has been drowned out by cynicism, so just a couple of observations:

- Private companies are once more to be strong-armed into policing an unwitting public. Henry has more analysis of this phenomenon which he'll be sharing at CFP next week.
- It's curious that the two EU member states most emphatically supporting the US invasion of Iraq (i.e. UK and Spain) are also the same two who are pushing hardest for carrier passenger data to be retained. Some plausible factors here - the law and order brigade tend to go hand in hand with the hawks so it's unsurprising that a government favouring the latter is also pushing for the former. Secondly, European passenger data access is being pushed hardest by the US, so it's no surprise that the US' biggest allies in the EU are rowing in behind. Thirdly, stir in the usual opportunism - the Spanish are hoping to catch a free ride on the fact that we have to make this data available to the US, so why not use it to round up some cheeky North Africans as well.
- funny too, that the Commission's rather feeble defense of having entered a probably unlawful agreement with US customs in February was that the US threatened to stop EU carriers from flying is employed by the Spanish as their own means of coercion. This is the same threat the Spanish propose to use to enforce EU carriers within the EU.

I presume the proposal is being mooted as a Council Directive because the carriers don't fall under the Third Pillar. Otherwise we'd have seen a short, sharp shock of a Council Frameworkd Decision being imposed without any input from the Parliament or oversight of the Court of Justice. I just hope that the Parliament manages to bottle and keep some of the righteous anger expressed earlier this week and use it when/if the time comes to give its views of this draft Directive. The Parliament has been a lot of mouth and not too much mettle on personal data issues - let's hope their courage is made of something more substantial than hot air.

light blogging

Am heading to the EU Studies Association conference in Nashville for 3 days, so blogging will be light, and dependent on me finding someplace I can plug my laptop into. Depending on the latter, hope to get my post on Easterly's book up soon.

The Maple Leaf State

More reactions from the blogosphere to the US-Canada spat. As mentioned yesterday, Dan Drezner has a long, useful analysis of precisely why the US ambassador's speech was so dumb; Kevin Drum, Matthew Yglesias, Jacob Levy and Josh Marshall concur. But the counterstrike has commenced ... Jacob reports a torrent of aggrieved emails from pro-US Canadians this morning. Dan Simon sez that this is all a storm in a teacup; the US and Canada are old friends, and the ambassador was trying to point up Canada's laxness on security issues rather than threatening trade reprisals as such. Dan has some reasonable points, but I think he's wrong on the main one - I think that the ambassador was making a veiled threat. I'm also not so sure that this is a spat between old friends either; Pedantry has a great post on the history of US-Canada relations, which he describes as being less "close friendship" than "intermittently acrimonious, like two neighbours who don't really see eye-to-eye very often, but have to live next to each other and usually try to remain civil about it." Sounds about right to me.

Canadian Bacon and US Ham-Handedness

Interesting story in the Globe and Mail today; the US administration is putting Canada in the diplomatic deep-freeze for not rowing in behind it on Iraq. The US ambassador says there is "a lot of disappointment in Washington and a lot of people are upset," and hints that the US will retaliate for Canada's refusal to go in without UN approval by cutting cross-border trade. The Globe and Mail quotes a UBC political scientist, who describes this as "part of an orchestrated campaign of intimidation coming straight out of the White House." Just like in Mexico and Turkey then. I simply don't understand US policy towards its allies these days; it doesn't make sense on its own terms. Does the administration really think that bluster and threats are going to make its allies more likely to support US policy? Not bloody likely. I predict an immediate surge in Chretien's popularity; anti-American feeling is running pretty high up here, and isn't going to be soothed any by these latest pronouncements. People like Mulroney, who've been peddling a more pro-US line, haven't been getting much of a hearing; they're likely to get even less of one now.

Update: Dan Drezner has more to say on this.
Update2: As has Kevin Drum

Little, Big

Via Locus Online, a very nice Boston Review article by James Hynes, who's written some spiffy fiction himself, on John Crowley. For those who have no idea of who John Crowley is (most of the otherwise-civilized world, I suspect), he's the author of a series of acclaimed but poorly selling novels stranded on the borderline between science fiction, fantasy and literature. His best novel is "Little, Big" - which is just extraordinary - it's the sort of book that you buy in batches of five or six whenever it's reissued, to press upon unsuspecting friends. "Little, Big" has gotten phenomenal write-ups from literary heavy hitters. Harold Bloom describes it as quite simply being his favorite novel of all time. Pulitzer prize winning Washington Post books editor, Michael Dirda thinks that it's a serious candidate for Great American Novel of the last thirty years. But outside the sf/f world, no-one else much has heard of it. Why? Hynes thinks, and he's mostly right, that it's because the fantasy/science fiction genre is still faintly disreputable. Some writers have managed to escape - Kurt Vonnegut, and more recently Jonathan Lethem come to mind - both of them are pretty widely read by people who don't think of themselves as genre readers. But they appeal to a different audience - their air of raffish genre disreputability means that they sell in truckloads to hip college students. Crowley, whatever else he has going for him, isn't hip. He's elegaic, melancholy, but with a surprisingly sharp edge. The theme that he returns to time and again is that there was once a time when a Golden Age was possible (or at least when we thought that a Golden Age was possible), but it has slipped away; it's irrecoverable. And how that bites. I recommend everyone and anyone to read him; there's a criminally expensive paperback import of Little, Big available on Amazon that I refuse to link to; it's much cheaper in the UK. He also has an extraordinary non-genre short story in the most recent issue of Conjunctions; "The Girlhood of Shakespeare's Heroines."

Anywhere but here

Well, two of the participants in next week's CFP panel on traffic data retention are in Brussels this morning, at a seminar being held by the Citizens' Freedoms & Rights, Justice & Home Affairs Committee. Cedric Laurent of EPIC will be speaking, and I can only presume that Marco Cappato, who's the Committee's point person on electronic surveillance, will also be in the building.

The seminar is called "Data protection after September 11, 2001: what strategy for Europe ?". It's a public seminar, but I didn't hear anything about it till yesterday, so I wonder how quickly it was put together and how many actual members of the public will be able to attend. It looks like an outpouring of criticism for the total disdain that the Third Pillar has for the European data protection regime. Many of the issues I've moaned about on this blog will be dealt with; information-sharing by EUROPOL, airline passenger data, delegating of tricky public policy issues to private actors, Third Pillar powers, etc. The programme asks if we will have to wait for the new treaty (which is still being negotiated) to be up and running before we can hope for any coherence on data protection in the Third Pillar and any clarification as to the Commission's role and competence in security issues.

I wish I was there finding out what's happening, and not stuck in an office waiting for email circulars to tell me 3rd hand. The usual suspects will probably say the usual things, but there's an intriguing reference to a German data protection proposal relating to security that I'd love to hear more about. One things the Germans are good at and that's data protection.

I'm in a pretty cynical mood anyway, but I don't have much hope that the seminar will do anything, except maybe keep the issue in the public eye and rake EUROPOL over the coals a bit. It looks like the chair of the Article 29 Working Party (the statutory committee of European data protection authorities) will be making most of the running. And for this self-referential crowd to make any criticism of the untransparent and unaccountable working methods in the Third Pillar..... Let's just say; pot, kettle, black.

Anyway, we should hear all about it next week at CFP.

Strangeways Here We Come

I'm in the final throes of putting together our panel for CFP, and have had difficulties in communicating with one of the participants, Italian Radical MEP, Marco Cappato, who's been the main man leading the European Parliament charge against data retention. I found out why today; turns out that he just spent a week in chokey after toking up to protest Britain's drug laws. I never thought that conference organizing would be like this ...

Economics and development

I've been reading two interesting books over the last couple of weeks; both about economics and development, neither of which was quite what I was expecting. They're Hernando de Soto's The Mystery of Capital, and Bill Easterly's The Elusive Quest for Growth. I'm half-inclined to do some sort of extended book-review of the two for one of the left-of-center policy journals, but wanted to jot down some ideas while they were fresh in my mind. Both books are interesting as representatives of a third generation of the new institutional economics. They build on Coase's initial insights, as well as the efforts of North, Williamson, and others to apply transaction cost theory to economic and political institutions, but have their own new - and intriguing - insights to offer. I note for the record that my academic crowd has a somewhat different take on all of this. It sees economies as fundamentally political, and driven by inequalities of power and the desire of self-interested actors to maximize their distributional gains. Doug North sometimes veers into this kind of analysis, but with embarrassed qualifications and hedging.

I'll start with De Soto, who has been getting a lot of attention recently, including a rave write-up in the Economist (I hope to blog about Easterly's book in the next day or two). Many interesting things in this book; and I have to admit that I'm impressed with anyone who can write big approving chunks about Marx, and still get enthusiastic back cover blurbs from Milton Friedman and Margaret Thatcher. Some annoyances too; the book is written in a faux-populist style which sometimes allows De Soto to glide over awkward facts. "The Mysteries of Capital" starts from Coase's basic argument that well specified property rights are all you need for to get to Pareto efficient outcomes in the absence of transaction costs, and radicalizes it. Coase is interested in static efficiency (and in showing the importance of transaction costs for real world economies; his key article is commonly misinterpreted). De Soto argues that well specified property rights are the underpinning for dynamic gains as well. His key claim: that the poor of the Third World are so poor because their informal property rights cannot be turned into capital. In the absence of well defined property rights that are fungible and protected by law, the poor can't use their property to obtain credit, or to produce surplus value. This leads, to what he describes in a lapidary phrase as "bell jar" economies in the developing world, in which the vast majority of the population operates extralegally, and is subject to exploitation, while a small, rich minority works within a bell jar of Western-style formal institutions. Further, certain social groups (lawyers, and petty civil servants), have an interest in keeping things the way they are. De Soto argues that the West's historical success can in large part be traced back to the successful transformation of informal property right regimes into nationally standardized formal ones. He goes on to provide a set of policy prescriptions to the effect that the developing world should do the same.

This is an important book. De Soto has done a lot of interesting research, and it shows (although the academic in me wishes that he presented it in a more rigorous fashion). And his arguments blaze the trail for an important new agenda for policy and research. However, he glides over several problematic facts for his thesis, two of which I want to highlight. First, he suggests that the way forward is to take existing informal structures of property rights, and to give them formal legal recognition. This is potentially problematic, unless you're a gung-ho Hayekian, who believes that spontaneous orders tend towards socially optimal outcomes. As De Soto implicitly acknowledges, informal institutions are very often based on deeply unfair divisions of property, in which marginal social groups do badly. Thus, in De Soto's account of the creation of informal property rights in 19th century America, it's clear that there were real losers: Native Americans, who were systematically excluded from the emerging informal systems of property allocation. When informal property rights were recognized by the US administration, it cemented these divisions. This is important, if you want to argue, as De Soto does, that your system will ease inequalities and lead to greater social stability. In some cases, the formalization of informal property rights is going to set inequalities in concrete; we have to be pretty careful in applying De Soto's prescriptions in a one size fits all manner. Specifically, I think we have to pay much more attention to power inequalities than De Soto does; they aren't merely a product of the gap between informal and formal property rights, and will have real consequences for political stability and social welfare.

Second, the fungibility of property rights is a lot more complicated in its effects than De Soto would have it (nb: for those who prefer their English plain, fungibility means exchangeability). De Soto uses the term for the degree to which property rights can be exchanged between individuals, something which is important to capital formation. As De Soto argues, it's pretty hard to get a bank to give you a mortgage or secured loan on your house, if your house can't be bought and sold on the open market. But there's a downside to fungibility which De Soto doesn't talk about. In many situations (including the quasi-formal schemes that De Soto talks about in 19th century America), fungibility was pretty limited; property could only be exchanged among a small community of individuals, who knew each other quite well, and could sanction each other easily. As De Soto says, these schemes mostly gave way over time to nationally based markets. However, his more or less explicit argument that the latter are always more efficient than the former is open to contention. Localized arrangements in which property can only be exchanged among a limited group of individuals have important economic advantages, which can in some cases trump the advantages of open markets.

Or at least, that's the main conclusion of an important body of research on common pool resources, pioneered by Lin Ostrom at the University of Indiana. Ostrom has amassed an extraordinary database on thousands of common pool resources (forests, rivers, dams and the like) across the world, and comes to some counter-intuitive conclusions. The traditional argument has been that collective pool resources either need to be governed by hierarchy (government), or privatized; otherwise they're subject to the tragedy of the commons, in which everyone has an incentive to overuse the resource in question. Ostrom shows that these claims just aren't supported by the empirical record. There are multitudes of empirical cases of common pool resources that are managed rather well by local communities. Thus, in some circumstances, "limited" and informal schemes of collective property management are better than formal, impersonal markets based on the exchange of private property. Ostrom's argument is too complex to be summarized easily; its main point is that collective overuse problems are best solved when there exists a relatively coherent community of individuals who know each other, and who have created a set of local rules to govern resource use that they can themselves enforce. The creation of truly national markets, and genuinely fungible property is likely to undermine these conditions; markets prize impersonality over personal identity, with unfortunate consequences for the enforceability of community rules, and thus for the management of common resources. (I note, however, an important qualification to my argument: many of these informal arrangements will be subject to the egalitarian critique that I've already outlined).

This suggests, I think that De Soto's one-size-fits-all prescription for economic development needs to be qualified in two important ways. First, before formalizing informal property rights, you should examine whether these informal rights themselves involve a highly unequal distribution of property. Otherwise, you run the risk of perpetuating inequalities that are not only bad in themselves, but are likely to undermine social cohesion over the long run. Second, it may not always be a good idea to make property rights fully exchangeable on impersonal national (or international) markets. This undermines local community rules and institutions that may sometimes allow for more efficient management of common resources than private property based schemes.

And the award ...

For Best Non-Supporting Director goes to Pedro Almovadar. After bluster and sermonizing from Michael Moore, and a standard anti-war spiel from the bloke in Y Tu Mama Tambien (whose name I can't remember), Almovadar gave a model speech opposing war in Iraq; quiet, understated, and compelling. Like Calpundit and Patrick Nielsen Hayden, I'm sorta pleased in the abstract that the Academy gave the award to Moore; it did poke a finger in the eye of gung-ho conservatives. But I just wish that the North American left had had a better representative last night than a self-promoting, self-satisfied idiot who seemed much more interested in grandstanding than in convincing the unconvinced. It would have been great if Susan Sarandon had had the opportunity to give a proper speech, or Tim Robbins. I think this goes to the heart of what Timothy Burke and to hammer home its sense of innate moral superiority. This isn't going to win people over in the longer war - to make sure that Iraq isn't just the first in a series of neo-con adventures abroad, and to stop the administration from messing up the peace.

(note) - I've added on a big chunk to this post, which last night consisted only of the first two sentences.

Update: Via the Volokhs, this Time article which makes the same basic point.

elsewhere on the web ...

Via Chris Bertram, two good links.
Item (1) - a good article by Brendan O'Leary, who recently left LSE for an endowed professorship in Penn.
Item (2) - a new political theory blogger, with an interesting series of posts on why the left is losing on the battleground of ideas. Good stuff.

Eminent Victorians

Am reading A.N. Wilson's "The Victorians" in bits and pieces at the moment, and came across a quote about 19th century Britain with considerable contemporary relevance. "Meanwhile, disguising beneath a genuine moral self-belief the venality of their commercial interests, the British took on the role of global policemen." (p. 52) Wilson is talking about Britons' opposition to slavery, which dovetailed quite nicely with British interests in the sugar trade. A nice illustration of how moral fervour and commercial self interest can batten on each other.