University of Amsterdam
E
XPERT POWER
E
UROPE
?
The relation between transatlantic data
protection agreements, data protection experts and
‘normative power Europe’
Thesis project
European security politics
Name: Martin Wesseling
Student number: 10293922
Date: 24-06-2016
Tutor: dr. Marieke de Goede
Second reader: dr. Otto Holman
Course: European Union in a Global Order Master Research Project
2 Contents
Introduction ... 3
Research question and problem definition ... 5
Experts and normative power Europe ... 6
Discourse, privacy, and security ... 7
The transatlantic perspective ... 10
Relevance ... 11
Research design ... 12
Outline of the thesis ... 13
Theoretical framework ... 14
Three dimensions of power ... 14
Normative power Europe ... 17
Expert networks... 20 Research design ... 27 Case selection... 27 Data collection ... 28 Discourse analysis ... 30 Interviews ... 31
Examining NPE and expert networks... 33
Reflections ... 35
Context of data protection ... 37
Data protection in the EU and the U.S. ... 37
Transatlantic data protection cooperation ... 39
Analysis ... 41
Identifying the EU expert network of transatlantic data protection ... 42
Expert discourse on transatlantic data protection ... 47
Normative power Europe in transatlantic data protection ... 52
Conclusion ... 60
Summary ... 60
Implications ... 63
References ... 66
Appendix I: Overview of documents ... 70
3 Introduction
The 21st century has been marked by the vast expansion of internet traffic, most of
it in the European Union and the United States. Personal data transfers are a highly technical issue that presumably requires regulation to make them safe and secure (European Union, 2015), so therefore the EU and the U.S. have been cooperating and negotiating on the terms and conditions for ensuring safe transfers through several data protection agreements. At the same time, the same growth of internet traffic and scandals such as the Snowden leaks involving the unlawful use of personal data for security purposes have led to increased attention for data protection and privacy questions in EU civil society in recent years (European Union, 2015). By the end of 2015, the Safe Harbour agreement that structured transatlantic data protection since 2000 was swept off the table by the European Court of Justice (ECJ) because it violated European citizens’ rights (European Parliament, 2015). This was the result of a case started by the Austrian citizen Max Schrems against Facebook, in which Schrems accused the tech company of breaching EU privacy rights. The ECJ ruling has been very important in the data protection issue area because it has forced the EU and the US to draft a new agreement, but also because it attracted wide media coverage and made the public even more aware of the issue of data protection.
Recently, the EU and the U.S. have been negotiating a new data protection agreement to replace Safe Harbour, called Privacy Shield. The result is an agreement that presumably boasts increased privacy protection through various measures, while at the same time providing the means necessary to ensure free flows of data to foster economic growth, but also to obtain data used to combat terrorism (European Commission, 2016). But these agreements also reflect a challenge for both the EU and the U.S.. Free flows of data and privacy protection do not necessarily go hand in hand, and for example the tension between security and privacy is one that has proven to be increasingly controversial, as the abandonment of the Safe Harbour agreement has shown. Even though the new agreement promises better safeguards for EU citizens’ privacy in comparison with the Safe Harbour agreement, there is also a wide range of criticism on the European approach to negotiations with the U.S. in these issues.
The Privacy Shield promises increased privacy protection, but it remains to be seen if the new agreement can live up to this promise. Some of the involved actors have been quite vocal about their critiques towards the new agreement, questioning its adequacy in the light of the ECJ ruling (Article 29 Data Protection
4 Working Party, 2016; International Working Group on Data Protection in Telecommunications, 2016; Buttarelli, 2016). Nevertheless, the Privacy Shield reflects the way in which the European Union has been trying to frame its position in a globalized world. As a political community, it has moved beyond classic notions of sovereignty and security. Through delegating sovereignty towards the European level, member states strive to cope with the challenges of the today’s world (Manners, 2002; Cross, 2013). Historically, the EU has not been a great military power, but rather an actor that tries to shape the international environment through promoting its norms and ideas.
This concept of ‘normative power Europe’ (NPE) thus revolves around a different interpretation of power than the nation-state does. It focuses on how European nation states cooperate and become integrated in the EU by virtue of ideas and norms (Manners, 2002, p. 253). This integration is not occurring naturally; EU officials and experts are constantly creating, negotiating and implementing policies that drive this integration. These experts and their expert knowledge are playing an increasingly significant role in the ongoing integration of the EU (Cross, 2013). Especially in the negotiations for data protection agreements like Safe Harbour and Privacy Shield, these experts have been influential (Richie, 2010, p. 8). The technical and legal aspects of data protection are contested and policymakers often rely on experts to inform them about these aspects (Cross, 2013). Those experts often form networks, based upon a shared set of beliefs about the policy issue and an authoritative claim on knowledge within that issue (Haas, 1992).
This thesis is concerned with these issues of NPE in relation to expert influence in transatlantic data protection agreements. These agreements show the dynamics of normative power Europe but they also offer a way of examining expert influence in European policy structures, which makes the case of data protection both relevant and intriguing. Moreover, the case of transatlantic data protection is suited for analysing NPE precisely because it is often said to reflect conflicting positions that the EU and the U.S. have in with regard to privacy. This enables a way of reviewing EU policy efforts in relation to the influential actor on the other side of the Atlantic. Theoretically, both NPE and expert influence build on an understanding of power that is revolving around preference formation through normative beliefs. Moreover, (normative) power is argued to function in a networked structure and manifests itself in mundane bureaucracy (Foucault, 1980), which is essentially the area that is inhibited by experts and expertise (Digeser,
5 1992). By examining the different conceptualizations of power and the way they are expressed in NPE and expert influence, this thesis seeks to further the understanding of the EU as a transnational actor, while also addressing the internal workings through which it tries to diffuse norms into the international arena. Research question and problem definition
Data protection agreements, features of normative power Europe and the influence experts can have on those agreements are the main issues that this thesis will deal with. In doing so, it will be guided by the following research question:
How are features of normative power Europe reflected in the way a European
network of data protection experts influence transatlantic data protection
agreements such as Safe Harbour and Privacy Shield?
The following section will outline some of the problems, tensions and dynamics that interconnect but also challenge the relations between data protection, expert networks and normative power Europe. The research question highlights some of the core dynamics at play with regard to data protection that require further investigation because they reveal how data protection agreements are constructed and contested. The EU tries to influence policy through diffusing its norms in the international arena. But more importantly, it tries to move beyond policy influence in order to shape the arena itself through (re)negotiating the frame in which policy formation takes place. The main actors that take part in this struggle for power are the experts that are involved in the data protection issue area. The EU is no unitary actor with a single voice; it is made up of the actors that create, formulate, and implement policies. Thus, the research question reflects the contention that NPE does not exist ‘out there’ as a conceptualization of the EU, but rather reflects in the day-to-day practices and regular practices of the experts that are involved in transatlantic data protection agreements (Digeser, 1992).
Ultimately, the thesis builds upon a conceptualization of NPE but seeks to assess its validity in the light of daily practices by expert networks. In terms of structure, the relation between the concept of normative power Europe and expert influence in data protection will be addressed. A conceptualization of power in relation to NPE and knowledge in connection with expert networks provides a way to theorize and, more importantly, connect both concepts. Next, data protection and data protection agreements are examined, based on a collection of data involving strategic documents, interviews, and parliamentary debates and hearings, ranging from the Safe Harbour until the Privacy Shield agreement. These different
6 conceptualizations come together through analysing how expertise governs data protection agreements in the light of normative principles and beliefs about data and privacy.
Experts and normative power Europe
There is a number of reasons why expertise in relation to data protection is examined. Firstly, experts are increasingly influential in the data protection area. Secondly, they play a major role in the discursive processes connected with power and knowledge. As noted above, for example, the concepts of security and privacy are essentially contested (Cross, 2013). Different conceptions of security and privacy play an important role in the framing of a certain policy issue, such as data protection agreements. The experts that are called in to inform the different actors about the nature of these concepts may thus play a central role in defining the discursive processes of negotiating agreements such as Privacy Shield and Safe Harbour, a dynamic that will be addressed below. Thirdly, although somewhat unrelated to the specific research question, these experts involved may function at a distance from the democratic mechanisms and accountability procedures that usually guide legislative processes. Therefore, mapping out the role of experts in data protection agreements may potentially elucidate some of the dynamics of expert influence from a perspective of accountability, even if it is not the primary aim of this thesis.
The influence that experts may have on the expansion of EU norms in regard to data protection is interesting for several reasons. First of all, as the introduction outlined, experts and expert knowledge are playing an increasingly significant role in this ongoing integration of the EU (Radaelli, 1999). Along the lines of the scholarly debate on expert knowledge (i.e. Haas, 1992; Radaelli, 1999; Cross, 2013), experts possess some sort of authoritative claim on the specialized knowledge of a specific domain or issue area. The thesis will use parts of the conceptualization on expertise provided by Haas (1992) in his epistemic communities approach.
The main concern with regard to expert influence in data protection agreements is related to the conceptualization of normative power Europe. As mentioned in the introduction, the EU does not possess extensive military power or other capabilities to forcefully exert its will. Rather, the EU can be conceptualized as a normative power that aims to influence the international arena by framing the policy debate along the lines of its own norms and values. Manners (2002, p. 239) coined this idea and defines normative power as the ability to “shape
7 conceptions of the normal”. This idea has been extensively discussed, changed and contested in the academic debate because it moves beyond the classic notion of power as being able to force a will upon others (Birchfield, 2013). As Manners, among others (Birchfield, 2013; Forsberg, 2011), argues:
“It is built on the crucial and usually overlooked observation that the most important factor shaping the international role of the EU is not what it does or what it says, but what it is. Thus, my presentation of the EU as a normative power has an ontological quality to it – that the EU can be
conceptualized
as a changer of norms in the international system; a positivist quantity to it – that the EUacts
to change norms in the international system; and a normative quality to it – that the EUshould
act to extend its norms into the international system” (Manners, 2002, p. 252; emphasis original).
This conceptualization offers three ways to examine how NPE works. These can be derived from the
principles
that the EU has, theactions
it undertakes and theimpact
it has in the international arena (Birchfield, 2013). In the terminology of Manners, these respectively refer to the normative quality, the positivist quantity and the ontological quality of the framework. This threefold conceptualization of NPE will be addressed elaborately in the theoretical framework and guides the assessment of the concept in the transatlantic data protection arena.Discourse, privacy, and security
In order to successfully assess how the dynamics of NPE are reflected in the practices of experts, this thesis will use discourse as its main tool. Discourse is understood as the “social practice that constitutes the social world”; practices that “systematically form the objects of which they speak” (Mutlu & Salter, 2013, p. 113). This focus on discourse is built around the theoretical assumptions that form the basis of both NPE and expert networks. Michael Foucault (Foucault, 1980; Mutlu & Salter, 2013) and his thoughts on the concepts of power and knowledge are key in this connection. His views are enmeshed in both conceptions, as will be shown by the theoretical framework. NPE assumes that power is reflected in preference formation, through ‘shaping conceptions of the normal’. Shaping conceptions is done through discursive framing; or to paraphrase Foucault: forming the objects by speaking of them. However, in order for these conceptions to change ‘the normal’, they must be recognized as valid and legitimate. As noted above,
8 experts are seen as experts by virtue of their authoritative claim on knowledge in a certain policy area. The defining feature of their authority lies with their perceived ability to decide which knowledge is valid and legitimate based on their extensive knowledge of the topic. Thus, the connection between NPE and expert networks resonates in this authoritative claim on knowledge and the position to change the terms of the debate which enables certain conceptions to prevail over others. Hence, discourse is the central element in this struggle to impose meaning on the issue of data protection. The thesis builds on this connection by taking discourse analysis as the main empirical research tool, as the research design will show.
An example of how discourse is decisive in the transatlantic data protection area is provided by the relation between security and privacy. Privacy is one of the core concepts in transatlantic data protection agreements and is strongly connected to the idea of NPE. It is seen as a core principle of the EU, considering its place in the Charter of Fundamental Rights of the European Union (European Union, 2000). The charter defines privacy and data protection in article 7 (“Everyone has the right to respect for his or her private and family life, home and communications.”) and article 8 (“Everyone has the right to the protection of personal data concerning him or her”) (European Union, 2000). Consequently, the EU tries to promote this norm of the privacy of its citizens in data protection agreements, while at the same time contributing to a (re)framing of the conceptual debate on data protection by emphasizing the need for adequate privacy protection. However, this has not been sufficient so far, as pointed out by the Schrems ruling and the critiques on the new Privacy Shield draft adequacy decision. So even though the EU recognizes and promotes the need for adequate privacy protection in its principles, its actions have not (yet) reflected this.
When looking at data protection policy documents, there is often a tension between security and privacy, which are portrayed as being contradictory. It reflects the reasoning that most measures aimed at creating a secure world have a negative impact on citizens’ privacy. In recent years, security has become an increasingly important issue. Especially the fight against global terrorism has gained political momentum in the past 15 years. This has caused a shift towards risk-based policies aimed at preventing security threats from materializing as early as possible. Extreme security measures are often legitimized by putting emphasis on the urgency of terrorist threats, a practice called ‘securitization’ (e.g. Buzan, Waever, O., & De Wilde, J., 1998). Increased surveillance is one of those measures that has been
9 intensively used in the years after 9/11 and is very relevant in the case of data protection. Using the narrative of the terrorism as threatening to western values, pre-empting terrorism through surveying and analysing citizens’ data is a widely used practice. In the light of recent terrorist attacks, as well as the scandals uncovering large-scale surveillance programs the security versus privacy debate is both topical and relevant in the case of data protection agreements. Even though not explicitly present in the Safe Harbour and the Privacy Shield documents, the recent attention for the involvement of U.S. security agencies in large-scale surveillance activities regarding EU citizens under the Safe Harbour principles has shifted the attention towards this tension between privacy and security. In the U.S., the debate about privacy is by definition a debate about security as well. “I mean, some of the basic issues we were discussing were at their core issues about how you protect civil liberties and national security” (U.S. negotiator, 2016). Therefore, the discursive framing of privacy as opposed to security is relevant because it might influence the debate.
Moreover, the notion that privacy is in contradiction between with security is interesting because it raises the question of how privacy is constructed in relation to security. The example shows how discursive framing can be used to alter the terms of the debate. Arguably, privacy is by definition a form of security and a discursive framing of these concepts as contradicting might be constitutive for a political bargaining strategy. As mentioned by a NGO representative that was interviewed during the thesis project:
“My professional view is that this whole balancing between privacy and security is a fake presumption. Lowering privacy does not result improvement of security. It’s the other way around, like you need to improve both of them at the same time. And I think encryption is the perfect example for that. You can only reach higher security if you don’t demand backdoors in encryption1” (NGO Representative, 2016).
Thus, a conceptual struggle about the boundaries of an issue area possibly has consequences for how the policy turns out. Highlighting these framings and discursive strategies provides a way of discerning the relation between both privacy and security as norms that need to be upheld in the international arena. These
1 This refers to a recent case in which the U.S. Federal Bureau of Investigation (FBI) ordered
U.S. tech company Apple to build a backdoor in their iPhone-software in order to search the iPhone of a terrorist bomber for clues.
10 frames and narratives may be influencing the arena in which data protection is negotiated, while at the same time being part of that arena. This position invites for a reflexive approach, able of capturing the dynamics of discursive narratives as both constituting and challenging the issue area. Both the theoretical framework and the research design seek to create such an approach that captures these dynamics for the whole transatlantic data protection issue area.
The transatlantic perspective
The object of this research is transatlantic data protection policy and how they become materialized in agreements. However, this thesis is mainly concerned with the EU side of these agreements. Arguably, an EU perspective would make more sense when assessing internal EU data protection politics, rather than a transatlantic focus. However, there is a twofold logic for approaching the research question from a transatlantic perspective. First, transatlantic data protection agreements are a relevant case because of the differences in data protection approaches between the EU and the US. The EU favours an integrated, cross-sectoral approach for data protection, while the US has a fragmented system with a patchwork of rules and regulations that differs between regions, sectors and levels of government. Additionally, the US traditionally seems to prioritize security and economic freedoms over privacy while in the EU privacy is generally perceived to be more important (Farrell, 2002, p. 104). With regard to data protection and privacy, the differences are sometimes captured by the ‘freedoms-approach’ versus the ‘dignity-approach’. Whereas the U.S. favours a ‘freedoms approach’, focused at limiting regulation to preserve freedoms (whatever they may mean), the EU is argued to live by a dignity-approach that emphasises the protection of human dignity (NGO Representative, 2016). Therefore, transatlantic data protection agreements provide a better opportunity to see how EU policies take shape in the face of different approaches than internal EU agreements do.
Second, a transatlantic perspective on data protection is necessary in order to effectively asses normative power Europe. Indeed, the concept can only exist when there is some point of reference. If it is the case that the EU tries to shape conceptions of the normal, there arguably needs to be a conception of the normal to be shaped; normative power Europe cannot be self-referent. By employing a transatlantic view on data protection, a point of reference –the US conception of the normal- is introduced. So, in order to make NPE conceptually relevant and valuable the broader perspective offered by transatlantic data protection
11 agreements is fitting. This consideration will be addressed as well in the theoretical framework.
Relevance
The question that this thesis seeks to answer connects with academic debate on the power identity of the EU, experts, data protection, and on a deeper level the politics of power. From an EU perspective, this thesis will contribute to the understanding of the EU as a unique experiment with supranational governance structures, pooling of sovereignty and the interstate bargaining processes that to some extent underpin transatlantic data protection agreements. Furthermore, the thesis seeks to further the debate on experts and expert knowledge by developing a methodological approach that captures how those expert networks develop over time through taking the Safe Harbour agreement as a starting point and moving towards the Privacy Shield agreement while also examining a selection of documents in between those agreements. Finally, the thesis aims at uncovering some of the politics of (normative) power that are influential in the evolution of data protection, mainly in connection to the way in which actors are able to frame policy issues to suit their preferences. For example, the construction of privacy as contradicting security can be seen from a perspective of power because it shows how opposing those two concepts may serve actors to further their policy goals in the international arena and thus how they are able to exert power.
Data protection has gained increasing salience in the European context, which makes this research project relevant in terms of understanding the evolution of (transatlantic) data protection over the past years. Not only academic scholars and policymakers are interested in the protection of European citizens’ data, as shown by the great amount of media coverage for the Snowden leaks and the Schrems case (Fioretti & Prodhan, 2016). Together these cases have made the public (even more) aware of the large-scale use of data by US security services and the perceived inadequacy of EU-U.S. regulation with regard to data protection. At the same time, the EU is criticized for being technocratic, resulting in a democratic deficit. Many citizens feel they don’t have any influence on the policies made by the EU, which certainly have an influence on the lives of citizens. A topical example is provided by the debate about Britain leaving the EU, which largely revolves around this problem. Enhancing the understanding of data protection agreements and expert influence thus contributes to more than an academic debate. Therefore,
12 the aim of the research is also to provide a background for the topical and lively debate on data protection from this perspective.
Research design
Before moving on to the outline of the thesis, some introductory notes on the research design of the thesis are needed. The full research design and corresponding methodological assumptions will be addressed in a later chapter. The approach is qualitative and will adopt timeframe that allows for examination of the Safe Harbour agreement, the Privacy Shield, and a number of documents in between those two agreements. This perspective moves beyond examining a single case and thus allows an understanding of the development of transatlantic data protection regulation in, roughly, the past 15 years.
In terms of research design, the first step of the project is concerned with a review of the academic literature on NPE, experts and discourse. This literature review is used to create a theoretical framework that captures and connects those elements in a way that fits the research question. The research design then links this framework to the data that has been collected, in order to assess the framework through the case of data protection. This data consists of strategic EU documents, including the Safe Harbour and Privacy Shield documentation, the EU data protection Article 29 Working Party (WP29) reports and several reports by EU data protection authorities. The specific criteria used to select this data will be elaborated in the chapter on research design. Furthermore, interviews are conducted with several key players in the field, such as the Head of Data Protection of the European Commission (EC) and NGO representatives. Additionally, several debates and hearings have been analyzed, mainly from the European Parliament, as well as high-level speeches and lectures.
The assessment of the transatlantic data protection case will start with an identification of the expert network that is involved in the case. In order to successfully identify the key players and leading ideas, narratives and discourses of this community, the different data sources are examined. Additionally, academic literature on the privacy community, data protection and expert networks is used to extend the scope of the network mapping (e.g. Farrell, 2002; Richie, 2010). Once the networks of relevant actors are mapped out, a selection of the key players that will be approached for interviews is made. This selection is based upon their perceived relevance within the field as indicated by the analysis of the documentation. By means of snowball sampling, these players are asked which
13 actors they deem relevant for approaching as well (Bryman, 2008, p. 184). The interviews aim at exploring the ideas, discourses and narratives of the transatlantic data protection community. Interviews are the preferred method because they provide a rich source of information and allow for some flexibility with regard to questions and themes to be discussed (Cross, 2013).
Even though the data protection expert networks are important in the research design, the main way to empirically assess the development of the data protection expert network in its specific relation to normative power Europe is a document analysis of the Safe Harbour and Privacy Shield agreements and its critical assessment in both official and non-official documents. This analysis is concerned with a discourse analysis of a selection of documents, as well as the interviews and speeches. It seeks to trace the development of normative ideas and narratives of NPE by means of assessing the principles, actions and impact of the EU. This reflects the tripartite framework for analysis that is developed on the basis of the NPE conceptualization in the theoretical framework.
Outline of the thesis
Based on the above research outline and the methodological approach taken to tackle the research puzzle, the thesis proceeds as follows. The following chapter presents the theoretical framework, based on considerations of the core concepts of data protection, expert networks and normative power Europe identified above. In the next chapter, which contains the research design, the theoretical argument is operationalized to make it fitting for the empirical analysis. Next, the context of transatlantic data protection in the EU and the US and its development in recent years is addressed. Then, the theoretical framework is connected with the data through a discourse analysis. This chapter starts with the identification of the expert network and its discursive strategies. Next, traces of normative power Europe in practice will be examined in the empirical data by using the threefold operationalization outlined above. The conclusion brings the result of the analysis together to draw some conclusions about the relation between expert networks and normative power Europe in transatlantic data protection agreements. This results in some notes on the implications of the results as well as suggestions for further research.
14 Theoretical framework
Three dimensions of power
This chapter seeks to forge a theoretical framework that explains normative power Europe (NPE), expert knowledge and then connects those conceptualizations using a focus on authority through discourse as constitutive for both normative power and expertise. Therefore, it starts with a theorization of power that revolves around the social construction of norms, ideas and knowledge, which feeds into a discussion of authority based on the writings of Foucault that deal with the connection between knowledge and power. Conceptualizing the EU and the way it exerts power in the international arena has engaged many academics and policymakers. As noted in the introduction, the EU moves beyond classic notions of sovereignty and power that legitimize the nation-state. Certainly, the EU has gained increased influence in the international arena, but how this influence takes shape is essentially contested. The conceptualization of the EU depends a notion of power that needs to be dealt with order to successfully theorize what the Union
is
, what itshould
do, and what itdoes
. A focus on the principles, actions and impact of EU behaviour, based on the conceptualization of normative power Europe by Manners (2002; 2008) is adopted to reach this goal. The outline of this chapter is as follows. First, the concept of power is explained through the theorizations of Lukes and Foucault, because it is central to NPE but also to expertise. After an elaboration of NPE, expert knowledge and expert networks are explained through a theoretical lens that focuses on authority and networks.Steven Lukes and his essay on power (1974; 2nd ed. 2005) provide a way of
dissecting the several elements of power that make up the different notions of EU power. Lukes distinguishes three dimensions to power, of which the third is most relevant to the argument presented here. The first dimension addresses the question of ‘who gets what, when and how’ and revolves around visible decision-making processes in observable conflicts (Lukes, 2005). However, this approach is limited because power is broader than just visible conflict. Non-decisions are just as indicative of power relations as decisions are, as argued by Bachrach and Baratz (1962). This second dimension of power concentrates on the question of ‘who gets left out and how’, often referred to as the agenda-setting dimension. Actors have power by determining who can take part in the decision-making process. The boundaries of the policy agenda constrain the policy options for actors and in this sense the agenda reflects power relations (Akram et al., 2015, p. 346). The third
15 dimension of power builds on the first two dimensions but expands it once more, taking interests and preferences as the focal point. As Lukes argues, some interests are favoured over others by virtue of the framework in which the policy debate occurs. The constellation of social, cultural, political, economic and institutional arrangements may be more welcoming to the interests of powerful actors (Akram et al., 2015, p. 346). Hence, these constellations allow powerful actors to influence the interests and preferences of other, less powerful actors without them being aware of it. Moreover, actors may be unaware, as Lukes argues, of their ‘real’ interests and preferences because these are not facilitated by the framework of the policy debate. This conceptualization of power and especially the existence of ‘real’, objective interests as opposed to subjective interests sparked much criticism (See Akram et al., 2015 for an overview), to such an extent that even Lukes himself conceded that his understanding of power is “essentially contested” (Dowding, 2006, pp. 137-138).
Lukes’ supposition that a ‘real’ world in which objective interests appear exists ‘out there’ has been subject to much debate, especially from a constructivist point of view. This critique touches on the debate on the relation between structure and agency, by claiming that the structures that may favour some actors over others in Lukes’ third dimension can only exist as a result of their social construction. It is important pay some attention to this debate on structure and agency because it also relates to the discussion on knowledge. Arguably, the constructivist position becomes “untenable” when considering the policy framework as a structure that unknowingly influences the preferences of actors, which is the essential aspect of the third dimension of power (Akram et al., 2015, p. 348). However, this policy framework is not created out of thin air. An important question with regard to preference formation and power is thus how structure and agency are related.
As argued by Foucault, this relation is the result of discourse. The understanding of discourse used in this regard revolves around “practices that systematically form the objects of which they speak” (Foucault, cited in Salter & Mutlu, 2013, p. 5). Discourse is performative but does not exist independent from the structural configuration in which it is used (Mutlu & Salter, 2013; Diez, 1999). Structures, or “the whole complex of apparatuses, institutions and regulations” are
16 “permanent agents” of power relations, by virtue of their construction through discourse (Foucault, 1980, p. 95).
“The Foucauldian approach focuses on how the subject is constituted through power, how power operates on and through the bodies of subjects. Here, agency is exhibited always in relation to structure” (Akram et al., 2015, p. 355).
Adapted to the analysis of discourse as performative in the data protection area, agency is more than just intentionality. Reducing agency to intentionality neglects the performative dimension of power while also underestimating the extent to which actions and choices are influenced by habitual2 aspects (Akram et al., 2015).
“Put alternatively, and in terms much more aligned with the phraseology of Foucault, the workings of power are never hidden, but immanent to practice. They are the habits by which we conduct ourselves, the identities we assume and the language we speak. As such, regulation and practice are immanent to each other, rather than mediated either by consciousness or by external structures” (ibid., p. 349).
Ultimately, Foucault agrees with Lukes that power is more than just decision-making processes. Preference formation is central to the conceptualization of power from Lukes’ three-dimensional perspective and thus the importance of discourse in forming preferences becomes clear (Diez, 1999). This is crucial for the understanding of power in relation to experts in this thesis exactly because it takes discourse as the tool of establishing links between the core concepts. Preference formation embraces the structures of thinking and behaving and extends into the territory of socially reproduced norms as the background condition for preference formation (Digeser, 1992, p. 981). Consequently, as reflected in Foucault’s notion of social unconscious, social and political forces shape preferences, regardless of conscious awareness (Akram et al., 2015, p. 356). So, a focus on discourse, based on this Foucauldian sense of power as relational and operational provides a tool to disentangle the dynamics of NPE in relation to expert networks. It becomes central to the production of norms and ideas, and -arguably more importantly- knowledge transfer, which links authority to practice. To phrase it differently, discourse creates
2 Based on the Bourdieusian concept of habitus as ‘subjective dispositions or understandings
17 authoritative claims on truth which subsequently create and sustain power relations.
Normative power Europe
This approach to power and preference formation shares some important characteristics with normative power Europe, that was identified by Manners as the ability of the EU to “shape conceptions of the normal” (2002, p. 239). Building upon the previous considerations regarding power, Akram et al. recognize the interplay between structure and agency, in which actors continuously “modulate [..] within the normative band of what is, and is not, recognised as a legitimate way of being and behaving” (2015, p. 356). Manners’ outline of NPE tried to enrich the existing focus of EU conceptualizations as ‘military’ or ‘civilian’ with their accessory empirical focus on institutions and policies towards cognitive processes, with substantive and symbolic components (Duke, 2010; Birchfield, 2013). According to Holland (2002), these cognitive processes are reflected in NPE through a practice of internal identification and legitimization followed by a process of external justification and projection.
To translate this conceptual core of NPE into an empirical toolkit, a focus on principles, actions and impact is valuable. This focus expresses the epistemological assumptions of NPE (Birchfield, 2013), namely the ontological quality, positivist quantity, normative quality (Manners, 2002). The NPE framework is further explained on the basis of this threefold characterization of principles, actions and impact. As Birchfield (2013, p. 912) explains:
“NPE can be characterized ontologically as it depicts the EU as a changer of norms, and secondly it has a positivist dimension as the EU acts to change norms and finally the framework has a normative element promoting the idea that the EU should act to spread its norms throughout the international system.”
Firstly, the ontological dimension examines the
principles
that constitute the EU (internal identification and legitimization) and their formulation as aims and purposes in the international arena (external justification and projection) (Manners, 2008, p. 55). Virtue ethics, with its emphasis on virtues and moral character, offer a method to assess the normative power of the EU by looking at “the character or traits which guide the EU and its member states in their pursuit of external actions”18 (ibid., p. 56). Concretely, this translates into an evaluation of the ontological quality of the EU through assessing how it “lives by virtuous example” (ibid.). In this respect, it is important that these virtues are both coherent and consistent.
Coherence means that the constituting principles and the actions of the EU are more than just self-referent to internally formulated norms, but rather originate from broader normative principles. These principles are based on, for example, the Charter of the United Nations (UN), which is assumed to be universally applicable. The universality of UN norms is obviously contested, but for the NPE conceptualization it is important to note that its constitutive principles refer to a greater normative framework (Manners, 2002; Birchfield, 2013). Consistency with regard to principles means that the EU complies with the norms it promotes; internal policies and external actions should be in line with each other (Birchfield, 2013). This is also related to the positivist quantity of the NPE framework, which is concerned with the
actions
of the EU.This positivist quantity of the EU is thus concerned with the way it acts in world politics. The EU needs more than just normative principles as a basis for its identity in the international arena. Actions and policies based on these norms and constitutive principles form the observable formulation in policy of these principles. Their validity and strength can be gauged through focusing on the way such policies are created. This approach is based in a Kantian conviction that the paradigm of reasoning cannot be derived from any other entity, but rather is moulded by obligations or rules. As phrased by O’Neill (2000, p. 52):
“Any appeal to other, external authorities to buttress our reasoning must fail. Just as a learner cyclist who clutches at passing objects and leans on them to balance thereby fails to balance at all, so a would-be reasoner who leans on some socially or civilly constituted power or authority which lacks reasoned vindication fails to reason.”
These rules-based ethics are not so much concerned with the virtue-ethics described above, but rather focus on the methods that inspire actions (2008, p. 57). Ultimately, this translates in the notion that the EU should be “reasonable” by justifying its external actions through engagement of other actors and dialogue with these actors (ibid., p. 58). However, to complete the empirical toolkit of NPE as a theory for this thesis, it needs to look at the effects of ‘living by virtuous example’
19 through ‘being reasonable’. Thus the final question remains: how can its
impact
be successfully evaluated?This third and final element of the empirical toolkit points at the normative quality of the NPE framework, how the impact of EU policy principles and actions plays out. For this element, Manners (2008, pp. 58-59) turns to consequentialism. Rather than taking virtues or rules as motives as the guiding principle for examining policy impact, consequentialism bases its judgment on the consequences that courses of action or inaction may have for others. Applied to the NPE context, this means that it should focus on minimizing the negative consequences of the diffusion of its norms by going for a course of action that aims ‘doing least harm’. This can be achieved through approaching the impact of policies in a reflexive manner, sensitive to the results they have on partners. This reflexivity is revealed in EU practices through critical reflection and policy learning. Moreover, reflexivity of the NPE framework with regard to consequences can be achieved by “unearthing them through a critical comparison of the discourse with the actual behaviour and impact on the ground” (Birchfield, 2013, p. 916). Manners also emphasizes the role of positive conditionality, which means that “progress is rewarded with greater incentives and benefits” (Ferrero-Waldner, 2006, p. 140).
As with any influential conceptual framework, the concept of normative power Europe has sparked a “a flurry of debates in the academic community and, to a growing extent, among practitioners” (Duke, 2010, p. 315)
.
Some of these drawbacks will be addressed, especially when they relate to the empirical application of the NPE framework in transatlantic relations, because they might affect the empirical analysis. First of all, Duke (ibid., p. 316) observes a lack of empirical focus on the third element of the NPE framework. The framework is often selectively used to judge the means and procedures of decision-making, thereby underappreciating the importance of impact assessment. This will be dealt with more elaborately in the operationalization and methodology sections, but for now it is important to note that the used data covers an extended period of time precisely to tackle this issue. Using this timeframe allows for evaluation of the actual impacts of data protection agreements, avoiding the trap of merely addressing means and procedures.A second critique is offered by Aggestam (2008) and Duke (2010) and has been shortly attended in the introductory chapter. NPE only exists by virtue of not
20 being something else, but it is questionable whether the EU actually is fundamentally different from other international actors, such as the US. To answer the question whether its foreign policy really has a distinctive normative character, it is vital to avoid insulation “from valuable comparisons with other actors or historical cases” (Aggestam, 2008, p. 4). The transatlantic perspective allows for such a comparison, as explained in the introduction.
A third, both conceptual and methodological objection to NPE is also raised by Aggestam (2008) and criticizes the ontological quality of the framework. The assumption that the process of internal identification and legitimization of the constituting principles of the EU are determinant for its policy goals and aims is challenged for being somewhat simplistic. Rather, “normative globalisation” (ibid., p. 4), the overall diffusion of normative principles in the post-Cold War era, has enabled the EU shape conceptions of the normal. This normative globalisation contains an emphasis “on responsibility beyond borders” which “brought issues like human rights, humanitarian intervention, international criminal justice, international economic justice and democracy promotion onto the agenda of foreign policy” (ibid., p. 4). Instead of the EU being the driving force behind changing perceptions of the normal, this globalisation has enforced the EU to take up a more proactive role in the international arena because the environment became more conducive to its aims. It is empirically challenging to fully understand this complex interplay between the different factors that might influence policy formation, let alone determine whether it is the EU as a normative power or globalisation of norms that came first in this regard. However, to avoid being completely indifferent to these external factors in the empirical analysis, the context of data protection agreements will be addressed as well by to gain an understanding of the possible contextual factors that might have an influence on EU normative behaviour. A separate chapter that sketches the context of transatlantic data protection agreements takes account of these external factors.
Expert networks
Building upon the above tripartite framework for analysis of NPE, a better understanding of how normative power might reflect in the ‘daily business’ of the EU in the international arena is necessary. It is again Foucault who points out why this is important. As mentioned above, power is relational and operational and hence does not exist independently from the actors that use it. However, the EU is
21 not powerful in the sense that it possesses it as some kind of commodity (Foucault, 1980, p. 98):
“Power is employed and exercised through a net-like organisation. And not only do individuals circulate between its threads; they are always in the position of simultaneously undergoing and exercising this power. They are not only its inert or consenting target; they are always also the elements of its articulation. In other words, individuals are the vehicles of power, not its points of application.”
Consequently, assuming that the EU is a unitary actor that exerts some form of normative power is a simplistic rendition of how power works. Therefore, this section will zoom in to some of the actors involved in policy formulation with regard to transatlantic data protection in order to gain a clearer understanding of how these actors might be diffusing the norms that the EU supposedly promotes. The focus will be on experts and expert knowledge, for three reasons. Firstly, experts and expert knowledge have become increasingly important in the EU context (Eriksen, 2011). Moreover,
“as a multistate, quasi-federal entity, the EU is a natural breeding ground for network formation. It provides a multilevel governance structure that encourages and facilitates people with varying interests to come together across national boundaries to accomplish common goals” (Cross, 2013, p. 10).
Secondly, norms, ideas, and expert knowledge are intimately related in EU policy (Radaelli, 1999). Thirdly, as illustrated by Kuus (2011, pp. 422-423), (geo)politics are a “mundane bureaucratic practice”, rather than a grand game of high politics between nation-states. Expertise is what makes concepts and claims crystallize and “ultimately renders social reality codifiable and manageable” (ibid.). However, beneath those “intentional, day-to-day political actions and practices there are deeper values and norms serving as background conditions” (Digeser, 1992, p. 981). These norms and values are not given or unchangeable, but can be questioned and altered (Foucault, 1980). They transform into political authority, which depends on a “constellation of shared values” or beliefs that are “authoritative” because they normally have some kind of “facticity” (Digeser, 1992, p. 981) to it. This realm of values and authority is inhabited by experts and knowledge. To phrase it
22 differently, “knowledge is a form of soft power, and soft power influences international relations in profound ways, especially in the European context” (Cross, 2013, p. 40). Examining experts and expert networks thus provides a foundation to understand the translation of knowledge into power (ibid.).
The task here is thus to establish a conceptual relationship between expert knowledge and NPE that reveals the way in which NPE works through those experts’ knowledge, while at the same time engaging in the wider debate on experts. This second consideration avoids a one-dimensional approach and allows the conceptualization of NPE to have broader implications than just the case of data protection. A common view on the relation between experts and policymakers is that knowledge and expertise form the basis for policymakers to select which means may best serve to achieve a political goal. As eloquently phrased by Eriksen (2011, p. 1172, emphasis original):
“They are constituted on distinctions between is and ought, facts and norms, administration and politics. Experts deal with
means
based on verified knowledge and politicians (or citizens) withgoals
based on norms and values.”This observation is key to the conceptual puzzle of this thesis, precisely because it questions this distinction. The EU is often criticized for being technocratic; the relation between expert and politician or policymaker has become inverted because the former is the only one that can provide the latter with solutions to highly complex problems of modern societies (Eriksen, 2011). On the other hand, science has gradually developed into a highly politicized area. It is no longer a field in which objective truths are discovered (Haas, 2004, p. 572). On the contrary, the assumption that experts possess some form of ‘verified knowledge’ is an example of how power works through the struggle for authoritative beliefs that subsequently shape the complex of apparatuses, institutions and regulations. In the EU, “expertise is operating in an increasingly politicized environment” (Radaelli, 1999, p. 771). The next section will focus on the role of experts in this politicized environment.
Most of the definitions of experts share a number of features, of which the most important is that experts possess unique knowledge or are in a position of authority because of a claim on possessing unique knowledge (Villumsen & Berling, 2015). This feature sets it apart from other actors in the (trans)national arena
23 (Cross, 2013). Whether this knowledge is ‘real’ or socially constructed is less important because it is recognized as valid by the community involved in the issue area (based on shared notions of what counts as valid). Hence the authoritative claim on knowledge and the ‘facticity’ of their claims.
International relations theory on experts can be divided into three strands, each with a different focus (Villumsen & Berling, 2015, pp. 3-4). A first strand of theorizing expert knowledge is the epistemic communities-approach, introduced by Haas (1992). This approach is based upon a fourfold typology that explains how experts may form networks of professionals with shared principled beliefs and common policy goals that possess an authoritative claim on knowledge in an issue area (Haas, 1992). It owes its name to Foucault, who introduced the term “episteme” as “a dominant way of looking at social reality, a set of shared symbols and references, mutual expectations and a mutual predictability of interests” (Ruggie, 1975, p. 570).
The second thread revolves around the question of how experts produce discourse and textual structures. Rather than separating experts as actors, this approach is concerned with processes of expertise, for example through language, paradigms and meanings. The third path takes from both approaches by emphasizing the central role of experts as distinct actors while at the same time highlighting expert agency through a focus on practices (Villumsen & Berling, 2015). This thesis aims to use epistemic communities as a theoretical point of departure in assessing the workings of NPE in relation to expert networks, but concentrates on discourse as the most important tool of power within these networks. Epistemic communities are especially suited for this task because of their net-like structure. Experts almost naturally organize into networks, their values need to move beyond individuals and thus have be shared in order to become authoritative. “If knowledge is not organized in some way beyond the individual level and is not shaped into some kind of coherent consensus, it is likely to have little impact” (Cross, 2013, p. 40).
The epistemic communities approach thus offers a viable starting point in the conceptualization of expert networks for the aims of this thesis, but it needs some deliberation before being fit for empirical examination. A first note on the application of epistemic communities as the theoretical lens for this research is necessary. The goal here is not necessarily to identify, conceptualize and examine a data protection epistemic community, but rather to take a broader approach.
24 Therefore, the framework borrows aspects from the concept of epistemic communities in order to use them as an instrument to problematize expert knowledge in relation to normative power. Addressing all aspects of epistemic communities and engaging in a full-fledged debate on their application goes beyond the scope of this research and would merely obscure the analysis. Nevertheless, the concept of epistemic communities shares some vital characteristics with the above conceptualization of NPE, which makes it so fitting for the analysis. The concept of epistemic communities is built around networks of experts with shared beliefs that possess an authoritative claim on knowledge. These assumptions reflect the core considerations on power as relational and operational in a net-like organisation, in which shared beliefs are becoming authoritative. These are exactly the elements that make up the conceptualization of power as discussed above, and therefore it lends itself for application to the case of transatlantic data protection expert networks.
As noted, epistemic communities explain how experts may relate to each other and come to be recognized as authoritative in a policy issue area. The famous explanation of epistemic communities by Haas covers the four main features.
“Epistemic communities may consist from a variety of disciplines and backgrounds, they have (1) a shared set of normative and principled beliefs, which provide a value-based rationale for the social action of community members; (2) shared causal beliefs, which are derived from their analysis of practices leading or contributing to a central set of problems in their domain and which then serve as the basis for elucidating the multiple linkages between possible policy actions and desired outcomes; (3) shared notions of validity - that is, intersubjective, internally-defined criteria for weighing and validating knowledge in the domain of their expertise; and (4) a common policy enterprise - that is, a set of common practices associated with a set of problems to which their professional competence is directed, presumably out of the conviction that human welfare will be enhanced as a consequence” (Haas, 1992, p. 3).
Members of an epistemic community thus act on the basis of normative beliefs, which is an important feature when considering the influence of EU norms in data protection. Accordingly, these normative beliefs are connected to assumptions about causal relations between phenomena. This is connected to the presumed dichotomy between expert and policymaker; experts are able to elucidate problems
25 and possible solutions through their analysis of practices. The way in which this analysis should be conducted is reflected in the shared notions of validity. Finally, these considerations come together in a collective goal with respect to the policy issue.
The concept developed by Haas has drawn some critique, which has triggered refinement of the approach with regard to the way in which it brings order in the four aspects identified by Haas, for example by Cross (2013). Her approach can be useful in further explanation of epistemic communities and deals with the critique by Dunlop (2000) that the explanatory power of epistemic communities is hampered by a lack of problematizing of the four elements that constitute epistemic communities. Haas originally does not distinguish between relative importance of the several elements, which makes it hard to assess which one is ultimately at the core of the concept (Cross, 2013). It is important to tackle this critique because the understanding of the four elements is fundamental to the relation of the concept with earlier theorization on (normative) power.
Hence, Cross (ibid., p. 25) further refines the concept by prioritizing the four features – (1) shared normative principled beliefs, (2) shared causal beliefs, (3) shared notions of validity and (4) a common policy enterprise – to assess what makes epistemic communities unique in comparison with other transnational networks of actors, such as informal networks, transnational advocacy networks or transgovernmental networks. Ultimately, shared causal beliefs are seen as the core feature of epistemic communities, because they ‘reflect the long-term analytical capabilities of a profession, the basis of their knowledge’ (ibid., p. 26). A common policy enterprise is the second most important feature; it is the rationale that sparks the creation of epistemic communities in the first place. However, policy creation is the end result and very much dependent on shared causal beliefs. Thus the shared causal beliefs are ultimately seen as the central feature of epistemic communities. The elements of normative principled beliefs and shared nations of validity are the result of the interplay between shared causal beliefs (and the professionalism that comes with this) and the final policy goal. Therefore, they are of less importance theoretically (Cross, 2013).
As a concluding remark for the approach of expert networks in this project, a note on discourse in relation to expertise is made. The third dimension of power describes it as the ability to (un)consciously shape preferences which results in a continuous adjustment of - but also to - the normative band of what is and what
26 isn’t legitimate behaviour, resulting in a reflexive approach towards these norms and legitimate behaviour. As Diez (1999, p. 599) argues, relating to the critique in the discussion on power, ‘real’ objective interests arguably do not exist. Consequently, the discursive context that facilitates the emergence of interests becomes particularly important. Language shapes the way in which problems are understood and thus alters the range of policy options by removing or adding certain options. As Diez (1999, p. 603) formulates: “The struggle to impose meaning on such terms as ‘Europe’ is not only a struggle between politicians but also between the different discourses that enable actors to articulate their positions”. Accordingly, the actor that is able to frame the dominant discourse for a policy issue has an extensive influence on which policy options are seen as viable. This “contest about concepts” (ibid.) is crucial for understanding the role of expert networks. The authoritative claim on knowledge possessed by expert networks, based on shared causal beliefs and a common policy goal can be understood as a position that empowers the members of these communities by virtue of their ‘discursive power’. Their ability to decide which knowledge is legitimate and acceptable in a certain policy area is thus key to understanding how they are able to frame the how, in this case, data protection agreements are shaped. Ideas and norms need to be dominant in an area, and emerge from a coherent episteme to have an influence on policy formation processes (Faleg, 2012).
Taking the above discussion of (normative) power, discourse and experts together, the following picture emerges. The notion of power extends beyond observable conflicts into the terrain of preference formation. These preferences are established by the performative function of discourse, through systematically forming objects by speaking of them. The concept of normative power Europe shares the focus on preference formation through the EU’s perceived ability to set the standard of normality. This can be assessed through principles underlying its policies, the actions it undertakes and the impact these actions have. Or, how the EU “lives by virtuous example” through “being” reasonable and “doing least harm”. Furthermore, (normative) power is operational and relational, and manifests itself in networks through individual actors and their everyday bureaucratic practices. Within the EU context, experts and expert networks play in increasingly important role in this regard. Their authoritative claim on knowledge, based on (subjective) shared beliefs and shared notions of validity has a profound influence on policy formation. Their ability to frame the policy issue by means of this claim on
27 knowledge (expressed through discourse) connects them to the conceptualization of normative power. Given this discursive power and influential position in the transatlantic data protection issue area, they possibly reflect features of NPE in the formulation of transatlantic data agreements. This theoretical foundation informs the analysis that follows. Before moving on to this analysis, however, the research design needs to be laid out and explained.
Research design
As noted in the introductory chapter, the research design for the thesis is qualitative, because it will focus on revealing underlying dynamics, narratives and ideas of transatlantic data protection agreements. This approach is most fitting because it allows for deep examination of a certain research puzzle (Bryman, 2008), which is necessary in the case of data protection. In terms of structure, this chapter will first address the research design through explaining the case selection, data collection and methods of analysis. The next part will pick up on these considerations and explain how these reflect the theoretical assumptions regarding NPE and expert networks. NPE was conceptualized along the lines of a tripartite framework for analysis (Manners, 2002; 2008), which will be elaborated and operationalised before moving on to the analysis. Additionally, analysing epistemic communities is challenging (Cross, 2013), and thus some attention will be devoted to the approach that was developed to assess the data protection expert network. The final part contains a reflection on the researchers’ position during this empirical phase of the project, which is appropriate given the interpretivist nature of the research (Mutlu & Salter, 2013, p. 22).
Case selection
The aim of the thesis is to explore and analyse the evolvement of data protection agreements and the way in which normative aspects of EU power reflect in expert influence. Even though the debate on transatlantic data protection agreements is topical given the Privacy Shield negotiations, a broader scope has been employed. As noted in the theoretical framework, this broader view avoids a unidimensional approach that focuses solely on the means and procedures of decision-making. Such a unidimensional view would be problematic because the analysis would assess whether the EU
appears
to be a normative power rather than gauging whether itacts
as a normative power (Duke, 2010, p. 316). Thus, in terms of timeframe, the analysis starts with the Safe Harbour principles, the predecessor of the Privacy Shield agreement and analyses the development of the data protection issue area28 through time. There are several reasons for using this perspective to analyse transatlantic data protection agreements. First, the temporal perspective allows tracing of the developments in the area of data protection rather than just singling out one case. This broadens the scope of the analysis and allows tracing certain ideas and narratives in the Privacy Shield agreement back to earlier events or developments in the data protection area. This approach also seeks to deal with the objection raised by Aggestam (2008) regarding the ‘normative globalisation’ as contextual factor that might influence policy formation.
Furthermore, because documentation for the Safe Harbour principles and the Privacy Shield is widely available and accessible a broad scope makes the collection of data relatively straightforward, which is desirable given the practical constraints of the project. For the period in between the two agreements, the data is somewhat more limited. The Terrorist Finance Tracking Program (TFTP), as well as the Passenger Name Record (PNR) agreements between the EU and the U.S. are the two major agreements that might have influenced the issue area, but given the specific nature of these agreements, taking them into account in a full comparison would not be feasible in the given timeframe, especially when regarding the very specific and unique dynamics and debates surrounding those two agreements. Therefore, documents regarding data protection in the EU in a more general sense were used, for example, the opinion on data protection of the first European Data Protection Supervisor (EDPS). Appendix I gives an overview of the documents that were assessed.
Data collection
The selection and collection of data is of crucial importance for the discourse analysis. Selecting and collecting the right amount and type of documents, speeches and interviewees enhances the analysis by a great deal, but also poses a challenge because it is hard to predict beforehand the specific content of different documents and interviews. This can be dealt with for the documents through using a systematic approach that applies the same criteria of selection for the full range of available documentation. Given the public accessibility of these documents there are hardly any obstacles for using these criteria to conduct searches over the full range of desired documents. This purposive selection of documents has implications for the validity of the framework, as will be discussed below. Nonetheless, all documentation is relatively homogenous, a feature that makes the analysis easier (Fairclough, 1995, p. 188). Moreover, it allows for the discourse analysis to be
