Should the United States Enter a ‘No-Spy’ Agreement with Germany and Other EU Partners?
June 9, 2021
The last few years have opened fissures in the transatlantic relationship. Even staunch European transatlanticists like Carl Bildt talk about how to reduce reliance on the United States, and the French see events as an opportunity to further their long-standing aim for a European security architecture independent from the United States. These strains shouldn’t be overstated—President Biden’s office has been greeted by goodwill (and relief) —but the United States also shouldn’t assume automatic European support in key areas, such as contesting the efforts of an aggressive China, without further measures to restore trust.
Digital technology can be a focal point for rebuilding the transatlantic relationship, but there are difficult issues to address involving data flows, digital content, competitiveness, taxation, and privacy. A central element for these issues is the widespread European belief that the United States is engaged in massive surveillance against its citizens. The Snowden revelations (and the restrained U.S. response to them) helped motivate Europe to pursue “digital sovereignty” and reduce reliance on U.S. technology and online platforms. While an economically strong Europe remains in the best interests of the United States, European digital sovereignty does not. Allegations of U.S. surveillance hamper the United States’ ability to make progress on issues like privacy and digital trade. Many Europeans believe that U.S. actions violate their privacy rights by exposing them to indiscriminate, bulk U.S. surveillance, an accusation that drives the disputes seen in the Schrems cases, whose result has been to invalidate agreements between the United States and Europe that allow for transatlantic data flow.
While the Snowden revelations have largely receded from view in the United States, they still shape opinion in Europe. But European concerns on surveillance are overstated, in part because Russian influence operations (of which the Snowden releases, after his exile in Moscow, are one example) inflame the issue, and in part because of views based more on myth than fact. European citizens are not targets for data collection per se. This gap between the reality of U.S. collection and European perception creates an opportunity to make concessions without damaging national security. Any decision must weigh the strategic benefits of strong EU and German support in a largely non-military contest with China against some degradation of collection. The key issues are what the United States would be willing to give up, and what meaningful commitments Germany and others would be willing to make in exchange.
Intelligence agreements by necessity are secret, but this complicates the ability of policymakers and the public to understand them. Compound that with a hyper-public focus on digital technologies, and the result is a space for misconception and mischief. Also, many European agencies lack the degree of parliamentary and judicial oversight found in the United States. This hampers public understanding of the degree of collection already performed by national agencies and the scope of existing cooperation with the United States. This is part of why European opinion is misinformed. There are already agreements, some long-standing, between American intelligence agencies and European counterparts, but their opaqueness fails to inform or assuage European public opinion. There are also misplaced suspicions that United States companies “cooperate” with the intelligence community in ways that make it impossible to fully comply with EU regulation such as the General Data Protection Regulation. This belief is inaccurate, if only because companies know the risk to their brand from cooperation.
The damage to collection from a “no-spy” agreement that would reassure Europeans there is no mass surveillance is easy to overstate. Since Snowden, there has been a move toward more targeted collection techniques. The United States ended its domestic bulk collection program in 2020 because it provided little of value. The Snowden and Schrems cases are out of date (as is the recent effort to damage EU-U.S. summit talks by resurrecting charges from 2013). Bulk collection of European citizen data offers no intelligence value. There is no incentive to collect it. A well-constructed no-spy agreement would avoid harm to current collection priorities. In fact, an argument could be made that national security would benefit from such an agreement, as the United States’ position in a great power competition with China and Russia would be significantly improved with the cooperation of Berlin and other key allies, and it will be much more difficult to compete without it.
Any new agreement cannot preclude continued operations against terrorism, proliferation, and counterespionage. Many of these operations are carried out in cooperation with European partner agencies (something that might be made clearer to the European public). Cooperation with European partners requires greater public acknowledgment by both governments to be politically tenable.
As part of this, the limits of counterespionage will need to be reconsidered in light of the new contours of interstate conflict. Foreign influence operations, once a tertiary element of national espionage programs, have become a central tool for coercion. The Russians, whose work in influence operations dates to czarist days, make particular use of these espionage tools against the United States and European allies. If a former senior German official works for a company connected to the Kremlin and lobbies on its behalf, he is a legitimate target for espionage. Common understanding on the limits of acceptable espionage against these operations (or at least a process to arrive at a common understanding) should be part of any agreement.
The European Commission does not have “competence” over intelligence matters, which remain the purview of member states. Germany is the most important of these, since Berlin is the key to cooperation in the European Union (the United Kingdom, although it shares a long-standing agreement constraining intelligence collection with the United States, is unfortunately no longer an entry point for Brussels). Reaching an agreement would provide an opportunity to refurbish and strengthen the relationship with Germany (whether before or after Merkel’s departure requires separate discussion), but the German Federal Intelligence Service (BND) has not always been forthcoming in its own collection activities (as the Bundestag has discovered); however, the BND, along with the intelligence agencies of other northern European nations, remains a close and vital partner.
The United States would need to decide if it would offer an agreement without condition or if it would ask for counterbalancing concessions from Europeans. Since this is largely a battle for public opinion, even making the offer (without consummation) would help. However, part of this offer should be to ask for two sets of concessions, one on China and one on Europe's own intelligence collection against U.S. targets. If the United States starts with Germany, one area for agreement might be German policy toward China, which remains far too ambivalent. Germany can value the economic benefits of trade over the security risk, but concern over China’s human rights violations and predatory behavior is growing in Berlin and other European capitals. Any accord needs to be made in the context of a larger transatlantic discussion of China policy.
Restraints on BND collection would also have to be considered as part of any agreement. This may open a serious intra-European problem, since while nations are happy to say allies should not spy on allies, in fact, some spy on their neighbors. This unspoken problem argues for starting with a "light-touch" political commitment among allies.
A no-spy agreement with the European Union would not need to be as comprehensive as the one with the United Kingdom (and any agreement should contain a clause to reexamine its scope after some years of experience). It would however have to be public to reassure European publics and governments, and it would also have to be binding in some way. If agreement is reached with Germany, it could set precedent for others, such as the Nordics and the Netherlands, although one diplomatic consideration is whether to start with Germany or with another friendly nation. The goal is to provide political assurances that strengthen the United States’ hand in digital negotiations with the European Union and help in building a common approach to China.
Unsurprisingly, if this proposal is considered, it may prompt vigorous debate on both sides of the Atlantic, but the starting point should be that the Schrems decisions are based on outdated myths, not fact. The best way to show this is to engage the Europeans, develop the outlines of an agreement, and make a public offer intended to rebuild trust and improve the U.S. position on transatlantic digital issues. Private assurance will not have the broad political and public effect needed. Some on the European left may never be persuaded, as the myth of U.S. surveillance is too attractive for their own worldview, but a no-spy agreement can help to take an important issue off the table while repairing transatlantic ties. The United States would lose little and gain much by adopting a more transparent posture and by offering to reach agreement with European allies.
James Andrew Lewis is senior vice president and director of the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C.
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