European Passenger Name Record trough the Multiple Streams Framework: The Power of Streams in the Policy Making

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Leiden University

Faculty of Governance and Global Affairs

Institute of Public Administration

MSc. Crisis and Security Management

European Passenger Name Record through the Multiple Streams

Framework: The Power of Streams in the Policy Making

Master Thesis by Indre Makaveckaite s1579134

Cohort September 2014

January 11

th

, 2016

First reader: Dr. Richard ‘t Hart

Second reader: Dr. Gerard Breeman

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Abstract

The present research piece is concerned with the development of the European Passenger Name Record Directive in the context of the European Union’s fight against terrorism and serious crime. The research analyses the handling of the dossier within the timeline ranging from its initiation until its imminent adoption. It focuses on the course of events and follows the negotiations on the proposal among the principal stakeholders and thus aims to identify the most influential episodes within the storyline. In relation to certain focusing events and their repercussions for the public, stakeholders and the directive itself, this thesis aims to reveal whether the development of the proposal could be examined through the Multiple Streams Framework (MSF), developed by Kingdon. MSF allows viewing the policy making process divided into separate independent elements (streams) and thus analyse them individually. Through the said theoretical lens, this thesis aims to explore and explain the power of streams theory towards the inclusion of the PNR data to the EU counter-terrorism arsenal.

Keywords

Passenger Name Record, European Union, policy making, terrorism and serious crime, smart surveillance, Multiple Streams Framework, Kingdon, focusing events, policy entrepreneurship, European Parliament, European Commission, European Council

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1.Introduction

1.1.Academic and practical relevance of the subject

In order to understand the contemporary society and what place security takes within it, one should focus on two intrinsic modern phenomena. First, the modern world embraces a development of what Ulrich Beck (1992) referred to as the “risk society”. Modern Western societies have been characterised by both the omnipresence of risks and vulnerability to them, where a number of insecurities have been produced by the modernisation itself. Moreover, some authors have coined a notion of so-called “security theatre”, where the dominating sense of fear bears a need for an abundantly demonstrated sense of control over the security (Murakami Wood and Webster 2009). In this regard, security theatre refers to bold yet primarily demonstrative security measures in order to curb the spreading panic over the modern risks. An avid example of the aforementioned phenomena would be the terrorism threat leading to increasingly bold and crippling security regimes.

A second important development is the advancement of technology, which, among other things, is enforcing a revolution in dealing with said risks and security issues. On the other hand, technology is unavoidably assisting the evolution of the threats and creating new security challenges. Thus, while increasing levels of information collection and advanced tools award a bogus feeling of control, the impact of the contemporary risks remains intact, leaving citizens still vulnerable to the threats yet also deprived from personal privacy. The broad appliance of CCTV cameras fairly illustrates this dilemma: while their effectiveness in reducing criminality is yet questionable, the resulting infringement of citizen privacy rights is unavoidable.

In this context, security has taken a shift towards an intelligence-based approach, employing various technological innovations in order to pursue information collection, processing and exchange. Information collection trends have reached a level of nearly blanket surveillance due to increased technological capabilities. Many academics have taken an interest in these changing security management patterns. Some have spoken about the normalisation of

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surveillance, which is supposedly “altering landscape of liberty and security” (Murakami Wood and Webster 2009). These new security instruments, such as CCTV cameras, electronic databases and other wireless devices have become essential tools in reinforcing conventional security regimes. Bellanova and Duez (2012), have nevertheless referred to these new technologies as socio-technical assemblages, since besides being based on technological capabilities, these instruments are not free from politics or human judgement. The “smart surveillance”, on the other hand, refers to the higher reliance on technology and the opportunity to take semi-automated decisions from the extracted information (Vermeulen and Bellanova 2013). These developments are thus important in the new security infrastructure yet naturally raising controversy with various legal and political issues.

The demand for security naturally surged after the salient terrorist incidents in the Western hemisphere at the beginning of the century. Thenceforward the security issues have been perceived as of transnational nature, thus challenging conventional security arrangements (Loader and Walker 2007). Firstly, terrorism presented particular challenges considering a virtually omnipresent possibility of threat. Secondly, this threat has spilled over geographically, due to various terrorist incidents across the globe. European Union thus eventually followed the United States in objective of establishing a distinct role in international security (Murakami Wood and Webster 2009). This has been illustrated by a number of national, European and international-level security instruments as part of the global war on terror and crime. Lately, the issue of terrorism has become so topical, that the “war” metaphor implies not only the urgency and the utter focus on the matter, but a certain political immunity against the criticism for unpopular and controversial measures. The European Union has thus followed this trend in gradually mounting its counter-terrorism arsenal.

1.2. The research subject in the context of new emerging security trends

As succinctly demonstrated above, the context of security and threat management was substantially influenced by modernization and technological advancement. Furthermore, terrorism threat has been perceived as one of the most prominent contemporary security issues. Thus, it is important to review, how the latter two processes challenged the evolution

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of novel security tools. In this context the research subject is introduced as it is directly corresponding to the developments in discussion.

In response to the terrorist attacks in the United States in September 2001, the idea of systematically monitoring travellers entered security governance. International travel gradually became a suspicion per se and security tools fundamentally encompassed the transportation of people. In general, the overall post 9/11 security architecture has been focused on gathering and storing as much information about individuals. The impetus behind the large-scale surveillance is to enable judgements on possible criminal leanings of individuals while fostering intelligence and predictive data analytics. It also marks the transition from traditional confirmatory profiling to data-driven knowledge generation as is inherent in the anticipatory governance (Leese 2014). The latter refers to the innovatory way of governing, introducing a capacity of foresight to the management systems. The inherent idea under this concept is a possibility to generate inductive judgements from the available information according to certain predetermined patterns. Smart technological tools combined with the ambitions of the anticipatory governance lead to the new-fashioned ways of security management. Anticipatory governance thus aims to anticipate and deter high impact events, such as terrorism, before they can occur.

Anticipatory governance has been deemed particularly important in the aviation sector where the cost of false negative errors is disproportionately high (Rasmussen, 2008). Hence, responding to terrorism threat it became essential to monitor and assess individuals entering the country and record this information in order to serve the law enforcement authorities. Anticipatory governance provided authorities with the ways of using this seemingly unrelated information in order to draw presumptions on potential threats to security. Therefore, the passenger data appeared as a prominent tool for security offices.

Passenger Name Record data (later – PNR) undoubtedly holds a peculiar place in the overall post- 9/11 security architecture as it represents a case of modern technology assemblage and part of anticipatory governance setting, yet raises usual controversies by impeding on free movement principles and individual privacy issues (Bigo et al. 2015). PNR has thus been chosen as a focus of this research: it is a prime example of recent developments within the

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security management realm considering the “smart” technological innovations, shift towards anticipatory governance and the broad extent of the new security instruments. Yet it is also illustrative of the current ideological dilemmas between the privacy and security and still questionable effectiveness of crippling security regimes. Thus it provides a topical case for a study in terms of the scientific relevance.

1.3.Discerning the features of the Passenger Name Record initiative

As mentioned above, data collection and profiling tools were only recently established as an important part of the security management. PNR data refers to the unverified information provided by passengers at the time of the booking airline tickets: it contains but is not limited to such information points as travel dates, itinerary, contact information of the individual passenger and payment details. Overall, PNR entails about 19 different data points about the individual. Initially PNR was used by travel and airline industries, and has been previously collected for commercial purposes and held in the carriers’ reservation and departure control systems. Gradually, it has been gaining interest of law enforcement authorities. Since the early 1990s in the USA, passenger data has been accessed by border and security agencies in a progressive and increasingly automated way (Vermeulen and Bellanova 2013). For security officials PNR databases provide one of the most detailed and personal information pools. As a source for profile generation it is hence considered as a capable instrument in the fight against terrorism and serious crime (De Hert and Bellanova 2011).

In the immediate aftermath of the 9/11 possessing PNR information began to seem inherent for United States’ law enforcement. While previously used for commercial purposes only, PNR, entailing the information about all air passengers, their itinerary and details of where and how the ticket was purchased, has become one of the principle sources to conduct the assessment of individuals entering a country (Rasmussen 2008). Also, as PNR entails multiple points of diverse personal information, it constituted an affluent and easily-accessible pool for the large-scale surveillance and thus anticipatory governance. Yet, US authorities had to oblige the reluctant European airlines with hefty fines thereby forcing them to comply with their new policies and share sensitive passenger information. In order to provide a legal background for this data exchange, the European Commission negotiated

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PNR agreements with the US authorities during the early 2000s. Shortly, agreements between the EU and several other third countries – Canada, Australia - followed.

Eventually, the European Commission introduced a proposal to establish a pan-European PNR system1 in 2007. It was presented as an extremely urgent and important file, though it was also regarded by some as a knee-jerk reaction after the analogue third country agreements. Moreover, according to the wording in the proposal, the value added of the PNR directive rested in its capability to identify suspects, previously unknown by law enforcement authorities, which resonated with the logic of the anticipatory governance. The initiative was initially blocked by the European Parliament and was for years opposed by it, despite continuous efforts of European Commission to maintain this file on the agenda. In mid-2015 the file reached a stage of imminent adoption (draft report by the respective European Parliament LIBE committee was adopted on 15 July 2015 thereby agreeing to a start of inter-institutional trilogues – I.M.). Thus the time span of the European PNR case development roughly extends over the period from 2007 till 2015.

The majority of recent counterterrorism proposals seem to converge at fostering intelligence-led information exchange and systematic large-scale surveillance promotion (Bigo et al. 2015). On the other hand, the critics of such measures, PNR included, draw attention to their supposedly intrusive nature and issues of individual data protection. Collecting information of all passengers appears to undermine individual privacy and harms due process requirements of the criminal investigation. Hence, the debate on PNR corresponds to the trending public discourse on the appropriate balance between the privacy rights and security measures. Another point of criticism tackles the dubious technical capacities and thus potential effectiveness of the PNR proposal. From the technical perspective, EU PNR initiative is based on a commercial arrangement hence it presents a case of a symbiotic-parasitic system (Bellanova and Duez 2012). Critics have also attacked the combination of

1_{COM (2011) 32 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE} COUNCIL on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (2011)

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different ex-ante, real-time and ex-post surveillance logics, assembled in a single PNR system (Vermeulen and Bellanova 2013). Finally, where a massive collection of personal data is required, the implementation cost of the proposed system increases thus the proportionality principle suffers.

Another aspect, relevant to the European PNR development is its uprooting in the EU-US and other third-country agreements. Some scholars claim that EU has only recently established itself as an actor in international security and counterterrorism realm (Kaunert, Leonard & MacKenzie, 2012). Others note that this role is barely developed and EU policies are usually just mimicking the official counterterrorism policy of the United States, which acts as a “big brother” to achieve its own national security goals (Rizer, 2011). In this line of argumentation, European PNR directive could be a mere response to international and largely pro-American security trends. On the other hand, it has been occasionally noted that the perception of the “American empire” in globalising the surveillance has been premature and represents an overly simplified and thus convenient explanation (Murakami Wood and Webster 2009). It has been furthermore argued that EU has become a certain “forum of choice” for the EU member states to discuss counterterrorism and thus earned significance as a counterterrorism actor following the entry of the Lisbon Treaty (Wade 2014:376). Therefore, in the discussion about the European PNR its origins in the agreements with third countries presuppose a context where European initiative flourished. Yet it presents more of an auxiliary factor than a principal contributor and thus should be examined only briefly.

1.4.The objectives of the research and central research question

As the process of European PNR evolution has been lengthy and complicated, it triggers an interesting debate about the reasons behind this particular course of development, which should not be limited to a single event. Undoubtedly, the PNR initiative is a controversial one, as demonstrated above. The research thus focuses on following the development of the European PNR dossier and explaining it in light of the external influences. In this regard, the development of the legislative dossier signifies its course from the legislative proposal until the stage of the imminent entry into force. Here the formal legal adoption, while important, is not deemed as an ultimate goal, as the principal agreement between all of the relevant actors

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is considered more important than the final version of a legislative text. External influences encompass the variables, having the power to intentionally or even unintentionally influence the policy agenda. In other words, in my research I am focusing on whether and how the European PNR dossier was set on the public and then decision agenda and what were the major triggers for this change.

In order to account for a complex and multifaceted policy making process, the Multiple

Streams Framework (MSF), developed by John W. Kingdon, has been suggested as the

analytical model. The theory of Kingdon provides mechanisms which explain how the policy proposals enter the public agenda and eventually the decision agenda. This framework aims to explain a policy change over time through the interplay of so-called separate streams, thus encompassing the environment, actors and context relevant to the emergence of policies.

Within the PNR development timeline, the shootings in the office of the Charlie Hebdo magazine (later – Charlie Hebdo shootings) in Paris, January 2015 were particularly relevant. Some academics rightly noted that counterterrorism proposals following Charlie Hebdo were rushed and somehow pre-negotiated. Equally, they could be defined as built on a “political momentum” (Bigo et al. 2015). PNR development seemed to reach its turning point in mid-2015, not long after the Charlie Hebdo attacks. On the other hand, the detailed analysis should show whether this is not an oversimplification of the PNR development and whether other factors have been involved. Thus the analysis over time aims to reveal these factors and their relative impact.

While identifying the vital factors in the PNR development is important, it lacks further scientific insight. Thus, in addition to naming the focal triggers in the PNR storyline, this research in principle aims to determine whether the development of the European PNR dossier could really be explained via Kingdon’s interrelated streams model. Hence, in my research the central question which I am hoping to answer is whether Kingdon’s MSF can

explain the manner in which the European PNR dossier appeared on the public agenda as well as on the decision agenda. The route of the European PNR is thus examined since its

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1.5.The outline of the thesis

The research focus resonates with the overall post-9/11 security architecture and the broader discussion on anticipatory governance along with the debate contrasting security and other individual liberties. Therefore, PNR directive presents an interesting case study for crisis and security management discipline. What is more, the research work follows the development of a counterterrorism policy, considering the impact to the policy making caused by the actual events. By contrasting theoretic observations to practical developments, important contributions to the public administration subject are drawn. Moreover, Multiple Streams Framework has been used to explain EU policies before (Ackrill & Kay 2011), but it has been rarely employed to analyse policies still under construction as is the case with the European PNR directive. Therefore, some additional insights about the applicability of the MSF model could be generated, thus potentially adding scientific value to the research project.

The thesis is thus composed as follows. It starts with the introduction of the theoretical framework and research design in chapter 2. The following three analytical chapters examine the development of the European PNR directive through the manual provided by the MSF model. The chapters 3, 4 and 5 regard the timeline as split into three stages, conceived after identifying two focal moments in the development of the policy. One of them is mentioned above and is marked by Charlie Hebdo attacks. However, a closer analysis also leads to the distinction of mid-2014, which proved to be eventful in terms of fight against terrorism. The sixth and the final chapter will provide conclusions, summarizing the output of the research and providing the overall assessment on the development of the PNR dossier and MSF application.

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2.Theoretical framework and research

design

2.1. Various theories of policy change

In order to analyse the development of the EU PNR proposal, a theoretical model explaining a process of policy change is needed. However, there has been naturally more than a single theory devised to explain the modalities of the policy-making. Therefore, in this chapter it is first deemed necessary to establish the arguments whether and how would the Kingdon’s MSF model be the most suitable approach to study this particular case. The advantages and drawbacks of the model are equally presented in this context. Finally, the operationalised framework will be presented, followed by the explanation of the chosen methodology.

In pursuance of explaining how certain ideas are moving forward while others do not, various social science disciplines invoked multiple theoretical models. Public administration literature revolves around numerous “theories of change”, which aim to explain how policy proposals enter the public agenda and, eventually, the stage of the imminent adoption. Some of them emphasize actors, structures and institutions. For example, advocacy coalition framework (Sabatier and Jenkins-Smith 1993) describes the policymaking environment as containing multiple actors, levels of government and high levels of ambiguity. Essentially, a policy change requires a coalition of actors developing the same belief system over a long period of time, in a context of limited resources and other constraints. Similarly, the Power Elites’ model focuses on the idea how power is concentrated in few hands, which drive major policy decisions. Other theories concentrate on where the policy innovations come from: among the most renown is the path dependence theory (Pierson 2000), arguing that timing and sequence of prior circumstances determines the later outcome. Other prominent models, such as policy learning/transfer theory (Heclo 1974) argue that policy change comes from drawing the lessons from the past or others’ experience. On the other hand, some models focus on the way decisions are made, which ranges from (bounded) rationality (Simon 1959) to incrementalism and “muddling through” (Lindblom 1959). Punctuated equilibrium theory

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(Baumgartner and Jones 1993) thus aims to explain how attention to certain policy issues influences the treatment of others when the long periods of stability are suddenly punctuated by salient changes.

This list of different approaches to policymaking is not exhaustive and only superficially presenting their strengths and weaknesses. Similarly as compiled by Cerna (2013), it only encompasses a selection of main theories and models of policy change. What they all have in common though, is the understanding of policy change as a actor and multi-dimensional process (Cerna 2013). However, while all of the models provide important insights on the process of policymaking, no theory is universally applicable. In this regard, Kingdon’s Multiple Streams Framework is a rather universal approach. It encompasses elements from many of the aforementioned models, acknowledging the variety of actors, importance of the beliefs in the system and relevance of the time dimension. As several of the models presented above, it also emphasises the overall influence of the external shocks. On the other hand, the MSF provides a unique perspective to policymaking process since it suggests analyzing simultaneous but separate developments instead of looking at a single particular trigger for policy change.

MSF model is also well suited to reflect the ambiguity and complexity in the decision making environment. EU decision making exhibits information asymmetries, multiple actors and complex multi-level power dynamics. Therefore, in terms of EU institutional and issue complexity, multiple streams framework is particularly useful to take into account such elements that would be otherwise considered as pathologies of the system. MSF acknowledges ambiguity as indispensable in policy process and thus arguably is the most satisfactory model in the EU context (Zahariadis, 2008; Ackrill et al., 2013). Therefore, Multiple Streams Framework seems to be a suitable starting point to reflect on the development of the European PNR directive.

On the other hand, the model undoubtedly possesses several drawbacks. As MSF was developed with reference to the United States policy arena, many authors (Ackrill, Kay, Zahariadis in multiple occasions) noticed its less-than-optimal appliance outside the national scope of policy making. Secondly, some authors observed lack of theoretical development in

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theoretical concepts and thus some of these ideas will be explored below. The model has been also criticised for the unclear theoretic scope, vaguely distinguishing the border between agenda setting and the actual policy change. Moreover, the absence of media role in the model also casts doubts on the overall legitimacy of some of the concepts, ignoring the influence of the prevailing public opinion.

However, even considering these underdevelopments, MSF is still worth applying with certain reservations, since there is no criticism-free theoretical template. The choice of the MSF has been supported above by its multidimensional approach, flexibility and applicability to ambiguous environments as EU counterterrorism arena certainly is. On the other hand, even fully acknowledging the supremacy of the MSF model in explaining complex policy processes, only the thorough analysis will show whether the inherent MSF mechanism applies to PNR policy development. Thus MSF should be considered as a theoretically viable starting point. This chapter continues with the layout of main characteristics of the MSF model and then examines in more detail the aforementioned pros and cons.

2.2.Multiple streams model revisited

John W. Kingdon developed a theoretical concept of multiple streams in 1984, after conducting a research in health and transportation policies in the United States. His plan to interview policy makers at the field over a certain period of time aimed to determine what factors influence items appearing and staying on a political agenda. The findings of the study produced theoretical observations about the several independent streams, joining at critical times in order to produce a policy change (Kingdon, 1995). The main elements of the model were determined as 1) the politics stream, as the “environment conducive to the agenda-change”; 2) the problems stream, as issues requiring the attention of the policy makers and 3)

the policy stream, entailing alternative solutions to the problems in question (Ackrill and

Kay, 2011:72).

Kingdon argued that in order for the issue to be placed on the agenda and eventually result in a policy change these three streams have to meet, in the process he entitled as coupling. He noted that policy makers do not actively choose what issues to solve, even more, they are

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facing variety of problems while under the influence of other exogenous factors out of their control (Ackrill, Kay & Zahariadis, 2013). Public agenda setting is the initial stage, where issue receives attention. In this stage only a couple of streams are required to be coupled – it is for example enough for policy to resonate with the problem to reach some attention even if political stream is not there yet. On the other hand, having a policy in a favourable political environment could provoke attention even if it did not directly respond to any particular problem. Kingdon further distinguished a political/decision agenda, where topics are lined for a swift decision. In general, this division is essentially to discern a mere political attention from substantive decision-making (Bache, 2013:22). Thus, in order for issue to reach decision agenda some other strategic elements have to be in place. Kingdon thus introduced them as a policy window, as a point in time where an opportunity is presented, and policy

entrepreneurs, admitted the proactive role of joining the otherwise separate streams. Policy

window does not stay open for long and thus a lot of issues are constantly competing to land in a decision agenda. Therefore, a policy change can be achieved only with the cooperation on policy entrepreneurs’ behalf – in other words – active advocacy, framing, venue shopping or other strategies facilitating the coupling of the aforementioned streams and keeping them together.

Figure 1: Process of policy change according to Kingdon‘s Multiple Streams model

Figure 1 graphically illustrates a perception of the MSF model. Three independent streams are the most important elements which have to be connected for a policy change to take

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place. They are represented as independent curves in the graph, fluctuating and sometimes intersecting with other streams. Time dimension in this model monitors and documents fluctuation of the streams over a certain period of time. When at least two of the streams join, a window of opportunity presents itself. At this point in time policy entrepreneurs can engage. On the other hand, policy windows sometimes “expire” and close even in spite of policy entrepreneurship. If all three streams are not coupled by that time, the policy change cannot happen, therefore such policy windows are considered as only “half open”. The analysis over time helps to record and analyse all of those “half-open” and open windows retrospectively in order to determine what (policy entrepreneurship) strategies work towards the policy change. Therefore, the time dimension is very important as overall conjunctive medium for otherwise detached elements and as an axis for the analysis. It assembles all of the elements of the model together and helps to make sense of the mechanisms. In the graph chronological axis also helps visualising the policy windows and thus to inquire on surrounding events.

Open policy window has been considered crucial for the three independent streams to be joined. However, it is perceived as emerging independently from the actions of relevant actors. Policy entrepreneurship is thus essential, proactively facilitating the overall coupling of all of the other elements in the model. Policy entrepreneurship could be argued to be closely related to the policy stream, as the urge to push the policies logically rises from the policy creators. Yet it is not always the case, and policy makers are not necessarily the ones (or only ones, at least) pushing forward the decisions on policies as entrepreneurs. Thus, policy entrepreneurship is independent from the streams yet co-dependent on the open policy window. Policy window thus seems to be a prerequisite for policy entrepreneurs to start advocacy. Overall, both policy window and policy entrepreneurs are autonomous variables in the model, yet not completely excluded from the streams. This co-dependence is well portrayed in the graph and should also be considered in analysing the real-life cases.

2.3.Applying the MSF model to the European PNR

In order to apply MSF model to the European PNR case, these different streams and other elements have to be identified. Moreover, following the analytical framework, additional

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explanations pertaining to the research question could be provided. The timeline between 2007 and 2015 thus presents a timeframe, within which the developments in separate streams should be analysed.

From the first glimpse at the PNR directive, problem and policy streams can be identified in quite a straightforward manner. The proposal submitted by the European Commission in 2007 and then in 2011, emphasised that majority of Europeans considered organised crime and terrorism a very serious problem. Defining the context of the initiative, European Commission underlined that 80 percent of surveyed Europeans would prefer stronger joint EU action in the areas of counter-terrorism and organised crime (European Commission 2011). It was thus argued that the systematic retention of the PNR data would allow law enforcement agencies to fight terrorism and crime more effectively. Therefore, in terms of a MSF model, EU PNR directive presents a solution (a policy stream) to terrorism and serious crime (a problem stream). These are two independent yet non-static streams as policy and problem develops over time. Thus it can be argued that at the moments of their intersection the policy stream succeeds to respond to the needs and issues of the problem stream, in other words – a solution is found to a topical problem. These points in time thus signal the issue’s appearance on the public agenda.

The political stream is however a more complex variable, while it is also a very important link for coupling the latter two streams together. As mentioned above, political stream is conceived as a comprehensible set of favourable conditions for a policy change. Regarding the institutional complexity of the EU, illustrated by a multitude of stakeholders and procedures, it should not be oversimplified to a single political actor. According to Zahariadis (2008:518), three factors are important for the political stream in the EU. It entails the balance (in terms of partisan and ideological affiliations) 1) in the European Council and 2) in the European Parliament, and 3) the European mood – similar thinking lines of the relevant stakeholders at the particular point in time. These factors could hence be streamlined into two sub-elements of the political stream – political environment, encompassing the broader political context and partisan balance; and political will, referring to the mood and intents of the political actors. These are undoubtedly the variables which are quite complex to be operationalised. Thus in the PNR case a special focus is given on the European Parliament,

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which is known to be a principal opponent of the PNR system since the outset. The institutional rearrangements such as Lisbon Treaty and European Parliament elections are also relevant in affecting the political stream. While it only accounts for a part of the political stream, other elements have to be elucidated during the analysis. Political momentum in the political stream is arguably best represented by a favourable political rhetoric or important decisions, such as adoption of certain legislation or policy course. The political balances in terms of partisanship of major actors have also to be monitored. Therefore these moments should be given most focus in analysing the political stream retrospectively.

In order to support a policy change or a lack thereof, the existence and duration of policy window(s) should be thus documented. From the theoretical point of view, a policy window opening is usually interdependent with a change in other streams. Bache (2013:23) distinguished political windows, where an urge for policy change would be caused by cyclical events (such as budget ratification, elections), and problem windows, opened by dramatic accidents or crises. For example, a change in the administration, dubbed as a “honeymoon” for policy makers, could lead to a policy window; while enjoying a high popularity rating the policy makers have more capacity, resources and energy for new policy proposals (Kingdon, 1995). On the other hand, a so-called focusing event – a high impact unexpected incident, mobilizing broad public attention (Birkland, 1998), could equally penetrate into the political system. Hence, dramatic events or crises could provoke considerable changes in the agenda setting at any stage of the legislative cycle.

Open policy windows refer to moments where the three streams are coupled; however this coupling is difficult to be localized in the policy storyline retrospectively. Instead, significant events could be emphasised while inspecting the stream action within the certain timeframe. Here, both the aforementioned political and problem windows are important, focusing on both high-impact and cyclical events. For example, just a couple instances in 2014-2015 only could be presented as potential policy windows. First, in summer 2014 the whole institutional arrangement of the EU changed, encompassing the European Parliament elections, newly composed European Commission and inauguration of the new holders of the EU highest executive posts, marking an opening of a political window. On the other hand, returning European foreign fighters were repeatedly raised as a serious issue at different EU

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institutional configurations since mid-2014, thus marking an opening of a problem window. Moreover, these signals were reinforced by the terrorist attacks in Paris in January 2015, which constituted an exemplary case of a focusing event. However, the aim of the analysis is not only to identify whether and what events caused the opening of the policy windows throughout the timeline, but also to determine whether in synthesis with other elements they provided an opportunity to produce a policy change. In this regard the aforementioned policy windows only ignite further analysis. Similar windows should also be identified over the full extended timeline.

As Kingdon noted, crises or other focusing events are of a short duration, and can keep the focus of administrations and the electorate only momentarily. Some authors have thus rightly observed that policy window is more of a facilitator than a factor in policy change (Ackrill et al. 2013). Opponents of the changes are aware of policy windows closing eventually and thus can deliberately block the initiative by demanding more time for analysis or overloading the agenda with new proposals (Kingdon, 1995). Therefore, the policy entrepreneurs have a prevailing role in Kingdon’s model and thus in obtaining the policy change. The entrepreneurs assist coupling of streams where necessary and push for a conclusion of negotiations. Ackrill et al. (2013) argued that due to information asymmetry policy entrepreneurs hold a privileged position considering the ambiguity and complexity of the political environment, thus a certain level of control in such a volatile setting. It has been hence suggested that coupling is a function of the nature of the policy window and the “skills and resources” of the policy entrepreneur (Ackril & Kay, 2010:77).

In terms of the European Union, it is most suggestive to assign the European Commission to the part of the policy entrepreneur. First, as it is composed of many sectoral directorates, it possesses broad expert knowledge besides vast overall experience in the EU affairs, which could be translated to considerable skills and resources. The European Commission also benefits from the asymmetry of information, which is arguably inherent to policy entrepreneurs. Moreover, European Commission holds an exclusive right of initiating legislation which consolidates its interest in achieving the new policies. However, as it was mentioned above, this function rather points to the European Commission belonging to the policy stream. On the other hand, as Kingdon stresses in his theoretical model, policy

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entrepreneurs are distinguished from decision makers. This means that policy entrepreneurs are dependent on external factors for a window of opportunity to open (Ackrill et al. 2013). European Commission has no extraordinary levers or executive powers to influence the duration or intensity of a policy window. On the other hand, due to its power connections and privileged position in obtaining information, European Commission has a more nuanced role in influencing decision making.

Lately, it has been argued that functional and physical separation of policy entrepreneurs and decision makers in the EU context has recently softened (Ackrill & Kay 2011). This means that the roles and functions are not so clear-cut in a complex, multi-faceted and bureaucratically charged apparatus of the EU. In that sense, European Commission assumes the role of policy entrepreneur, but is not completely detached from neither the policy making nor the decision making processes. European Commission in this specific MSF adaptation is therefore linked to policy stream and to the political stream simultaneously. This could either mean that the European Commission is not (the only) policy entrepreneur in this case or that the model should be better adapted to the current EU setting.

As during the earlier financial crisis, the EU leaders agreed on a bail package for individual members only when the possibility of contagion was presented (Ackrill et al. 2013). Thus a policy entrepreneur might use a certain rhetoric or framing where the coupling of policy and problem streams is not evident. Only partially depending on a favourable set of conditions, he has to employ the window of opportunity strategically. Thus, certain political discourse might be necessary to couple the streams. Usage of the political discourse potentially expands above the competences of the European Commission. Therefore, other political actors, such as the European Council, could be investigated while analysing the policy entrepreneurship in the EU setting. European Council is also a compelling choice in the post-Lisbon Treaty setting, where the EU member state holding the 6-month Presidency lost the previously held power on the EU agenda setting.

Nevertheless, notwithstanding who takes the function of a policy entrepreneur in the end, the function itself is more important. This function of policy entrepreneurship can thus be detected by looking at the public discourse. Therefore, instances of mentioning and actively

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advocating for the PNR directive could be identified as examples of policy entrepreneurship in this case.

2.4.Using MSF for studies in the EU level: an example of operationalisation

The subchapter above establishes “what is what” in terms of applying the MSF model to PNR case. However, this only gives guidance for the further analysis. Therefore in this sub-chapter, the findings of another study using MSF in the EU context are first presented. It is believed to assist the construction of a particular research design in the present case.

While stressing that the MSF model should be decontextualized from the distinctive characteristics of American policy making processes in order to adapt to the EU setting, MSF has been previously used to explain the 2005 EU sugar policy reform (Ackrill & Kay 2011). The study has established that complexity is naturally embedded in the interactions among EU institutions, issues and policy entrepreneurs, considering intricate procedures and numerous stakeholders in the decision making (Ackrill et al. 2013). On one hand, MSF has been argued to well reflect the ambiguity, complexity and fluidity in the EU policy making. On the other, it is considered lacking theoretical development in handling complex,

cross-sectoral and international characteristics (Ackrill & Kay, 2011:73). The aforementioned

study thus aimed to adapt some theoretical elements of the model in order to fit the purpose.

First, considering the unclear hierarchy between different directorates of the European Commission and the distinction of Commissioners and their cabinets in the overall scheme, the core concept of ambiguity was interpreted in institutional terms. Thus in the presence of the contestation over control, the notion of the institutional ambiguity was suggested. The study revealed that resulting from institutional ambiguity the causal mechanism in coupling the streams is closer to deliberate filter-based selection, establishing that ideas simply “have their time”. This reflects a relatively closed and technocratic nature of the EU policy-making and portrays policy entrepreneurship as a “context-specific activity” (Ackrill & Kay, 2011:88). In turn, an analytical distinction between policy entrepreneurs and process of policy entrepreneurship was suggested, which hints at the influential entrepreneurial activity among senior policy-makers and their leading role in policy change (Ackrill & Kay,

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76). This revelation mitigates the discussion on the policy entrepreneur role in the PNR case, as discussed above. The study also revealed that policies, belonging to the remit of several directorates, could be related to so-called endogenous spillovers to adjacent institutionally connected arenas, in addition keeping policy windows open for significantly longer. Therefore, it was suggested that when the policies are thematically-overlapping, as it is also the case in the PNR directive, the related changes in some policy arenas might create imperative but not immediate push to the other arenas. Such elongated and vaguely determined policy windows diminish the relevance of “salient causal events”. Therefore, the importance of focusing events in such cases is relatively smaller than in comparison with more monolithic instances. Thus, the weight of the focusing events in the PNR case should be considered with certain reservations.

What the sugar-reform study also provides is a methodological model of the MSF application. The development of streams is analysed separately there, and thus the focal moments in development of each individual stream are identified. At the same time, it is argued that no single element/event could have explained the policy reform and thus the combination of the factors is emphasised. That is going to be my approach in this research as well. As policy and problem streams were identified in a clear manner, the research will follow their development over the suggested timeframe. As for the political stream, policy window and policy entrepreneurship, these elements have been argued to be closely interrelated and thus are more difficult to be analysed individually while a certain domino effect between the three should be considered. Therefore, while following the chronological evolution, these relationships will be unravelled. The principal aim is to define retrospectively what worked in the PNR case and then to determine if this storyline can be fitted in the model of the MSF.

2.5. Operationalization and research design

As the discussion in the paragraphs above demonstrates, the variables in the MSF model are quite difficult to be operationalised. Rather, these variables are observed by proxies and identified approximately. For instance: the development of the political stream, which is considered as quite an abstract narrative, is suggested to be recounted by looking at partisan

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balances, political discourse and duration of political cycle. The European Parliament will be given particular focus in analysing the political stream. As for policy entrepreneurship, political discourse, inciting the adoption of the PNR directive, is to be searched for within the said timeline.

The policy window is a point in time when the streams are already coupled. This moment cannot be observed retrospectively as policy windows sometimes close without a policy change. The only indicative variables are important cyclical or focusing events within the timeline, which could signal the potential opening of a window of opportunity. Another grey area is the functioning of the MSF mechanism itself. The turn in which the elements are assembled into the mechanism is unclear, as there are no rules of sequence apart from policy entrepreneurship entering only with certain conditions in place. Chronological dimension is thus immensely helpful here as it recounts the policy development over time and diminishes the danger of omitting any important developments from the storyline.

As for the timeline itself, as Kingdon leaves the margin between the agenda setting and actual decision making rather implicit, I imply that the stage where the decision is imminent is sufficient to represent the ultimate outcome of a satisfactory coupling. In the context European Union, the final step in policy change is adoption, yet, considering the lengthy trilateral inter-institutional negotiations (trilogues) after a general approach is agreed, the text can go far from the initial proposal. In theoretical terms this could mean that policy stream is still fluctuating after all the three streams are coupled. Some authors consider this discrepancy a drawback of the MSF model. Thus for simplification I am limiting my research until the stage when agreement to start trilogues is achieved, i.e. until mid-2015.

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Variable Equivalent in the PNR case Important actors Policy stream PNR directive (EU

counter-terrorism policy in a larger sense, early third-country agreements considered) Problem stream Terrorism and serious crime Political stream Political environment

(political cycle, partisan balance) + Political will (political rhetoric and decisions)

European Parliament

Policy window *Political windows + Policy windows = Important events within the timeline between 2007 and 2015

Policy entrepreneurship European Commission + European Council

Table 1: MSF variables and the equivalents in the PNR case *Only indicative of a window of opportunity

For the sake of clarity, the variables used in this research are once again recited in table 1. In terms of the research question, I intend to look at the development of the European PNR through the manual and analytical units provided by the MSF. Using the desktop and literature research, I will analyse publicly accessible documents, speeches, press releases and narrative of the course of the events. The data to be gathered is mostly qualitative. From the overall storyline, I will be able to identify what triggers were the most significant towards the completion of the PNR. In other words, I analyse at what point in time and in what circumstances the coupling of streams could have been possible, while observing open and half-open policy windows throughout the timeline. While analysing the course of events I determine which combination of factors and events was vital for the development of the PNR directive, instead of looking for one salient event.

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However, while I support my choice of the MSF analytical framework and even present the operationalisation of the framework in this chapter, it does not yet answer the central research question: whether the development of European PNR can be explained by the theory of the multiple streams. For this, it is not sufficient for the elements of the model to have equivalents in the studied case, but the storyline should match the mechanism as pertained in the theory. In this regard, the analysis should demonstrate what caused the significant developments in the PNR evolution leading to mid-2015 and whether the coupling of all three streams could be documented by this time. This means the stage in the policy stream conforming to the evolution in the problem stream and the political stream, demonstrated by a level of maturity in all streams respectively and also manifested by signs of policy entrepreneurship. In case of a contrary outcome, some suggestions for the adaptation of the MSF model should be provided.

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3.EU Passenger Name Record proposal

until mid-2014

The European Commission published a proposal for a Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes in November 2007 (COM (2007) 654). Due to the entry of the Lisbon Treaty in 2009, proposal became void and thus was re-submitted by the Commission in February 2011. This chapter briefly recalls the chronology of the proposal from 2007 till 2014 and observes key moments in the negotiations. Overall, this analysis follows the development of problem, policy and political streams.

3.1.Development of the problem stream – fight against terrorism in the EU

Fight against terrorism and serious crime has been firmly enshrined in the European Union’s policies and political priorities. The Treaty on European Union states, that providing citizens with a high level of safety is one of the key objectives in the EU (Burres, 2013). Moreover, terrorism and serious crime have been re-confirmed among the strategic priorities in the recent EU internal security strategy (European Commission, 2015). EU counter-terrorism policy entails rather multifaceted measures, ranging from mobility realm, operational instruments in the financial sector to some tools aiming to fight ideological radicalization from the outset. This sub-chapter explores how the perceptions on terrorism developed in the EU and how the response to terrorism has matured into its current form.

3.1.1. Overall timeline of the EU counterterrorism policy development

EU cooperation in the counterterrorism area was naturally given impetus after the terrorist attacks in New York in September 2001. It gained further momentum after big scale terrorist attacks occurred few years later on the European soil in Madrid and London. Unsurprisingly, there has been a visible correlation between the attacks and creation of counter-terrorism measures on the EU level. Considering shootings in Brussels Jewish museum in May 2014 and Charlie Hebdo attacks in Paris in January 2015, one could argue that these incidents have

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created similar circumstances. Therefore, it is important to look at the retaliatory measures employed by the EU authorities following the earlier attacks and look for potential analogies.

The EU fight against terrorism was named a priority objective in the Extraordinary European Council meeting on 21 September 2001, reacting to the 9/11 terrorist attacks in New York. In the conclusions and accompanying plan of action, main components of the EU counter-terrorism response were sketched as: judicial and police cooperation, measures against terrorist financing, air security and implementation of international legal instruments (European Council, 2001). The action plan was followed by the Anti-Terrorism roadmap which specified 47 operational measures to be taken in the EU within Justice and Home affairs realm. Most urgent were the adoption of the European Arrest Warrant and the establishment of Eurojust, agency for judicial cooperation in the EU (Council of the European Union, 2001a). Later in October 2001 General Affairs Council, which was awarded role of horizontal coordination in counter-terrorism policies, adopted the overall plan entitled “Coordination of implementation of the plan of action to combat terrorism” (Council of the European Union, 2001b). Observers remarked that many of the initiatives in this plan concerned the reinforcement of dialogue and cooperation through various forms of informal groups. Yet the loopholes in parliamentary accountability and data protection issues were emphasised by the advocates of the civil liberties (Statewatch, 2001). In June 2002 Council of the European Union adopted a framework decision on combating terrorism, seeking for approximation of definitions and harmonisation of punishments regarding terrorism in the Member States (Council of the European Union, 2002).

When the first large scale terrorist attack happened in the EU territory, affecting Spain in March 2004, European Union naturally responded with even more commitment and determination. Declaration on combating terrorism was adopted by the European Council meeting that same month following the Madrid bombings. Among other pledges, the office of the EU counter-terrorism coordinator was established. Importantly, EU-wide databases and information systems (SIS II, VIS, EURODAC), gained prominence as valuable instruments in the prevention and fight against terrorism. The declaration equally accentuated initiatives for personal information exchange with the purpose of combating terrorism. In this regard, obligation of carriers to communicate passenger data was reiterated (European Council

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2004). As a result, Council Directive 2004/82/EC of 29 April 20042 established the requirement for carriers to share advance passenger data (API) with competent national authorities.

Therefore, it could be suggested that Madrid bombings presupposed an opening of sort of a second stage in the EU counterterrorism policy development. While post-9/11 response emphasised the reinforcement of dialogue and judicial cooperation, post-Madrid policies gave preference to operational response and personal information exchange. The declaration on combating terrorism entailed inducements to retain the communication traffic data and simplify the procedures for the intelligence exchange. Overall, following the Madrid attacks, terrorism has developed into a geographically unrestricted issue and thus the threat for the EU altered European views on war on terror in general. However, the major upheaval was caused by London bombings in July 2005. Only a year after Madrid tragedy it illustrated the need for more robust and swift counterterrorism policies. To this end, in November 2005 European Union adopted its first EU Counter-terrorism strategy to reconfirm a strategic commitment to combat terrorism (Council of the European Union, 2005).

The most controversial aftermath of the Madrid and London terrorist attacks was the data retention in telecommunications directive. Established in 2006, it was aiming to retain certain traffic and location data from the telecommunications companies in order to strengthen EU efforts in crime investigation and persecution3. However, it was later judged invalid by the European Court of Justice and taken down in 2014. It marked a clear momentum when personal privacy issues were contravened by public security considerations. However, the ECJ ruling also revealed the conflicted relationship between the two and this undoubtedly influenced the later negotiations on counterterrorism measures. 2009 Stockholm programme on justice and home affairs issues established a principle of “above all-protected fundamental

2_{COUNCIL DIRECTIVE 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger} data. Official Journal L 261 , 06/08/2004 P. 0024 - 0027

3_{Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of}

data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC . OJ L 105, 13.4.2006, p. 54–63

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rights” (Brouwer, 2009). Thus it shows that in a sense EU had to change direction or even to take a step back in its counterterrorism policies after the initial post-London hiatus evaporated.

3.1.2. Ideological shift in the counter-terrorism policies

Mitsilegas (2012:203) noted that post-9/11 marked a transition for the border security policies from aiming at irregular migration to the overall monitoring of cross-border mobility at all instances. In his argument, immigration law has become the counter-terrorism law and has been broadened to target EU citizens besides the third-country nationals. Leonard (2015) added that border controls were not considered as part of counter-terrorism measures in the immediate aftermath of the 2001 terrorist attacks, and thus gained prominence only after 2004 events in Madrid. Border controls were hence identified as priority in 2004 Declaration on Combating Terrorism (European Council, 2004). EU external border agency FRONTEX, established in 2004, and European Border Surveillance System (EUROSUR), introduced in 2003, became the principal elements of this framework.

Strengthening information exchange has also prevailed in securing external EU borders. EU had been equipped with various databases and tools of data sharing, mostly directed towards the third-country nationals and their movement across the borders. Visa information system (VIS) is an exemplary instrument, assembling immigration data of third country nationals. Since 2008, it has been suggested to broaden the access to VIS to designated national authorities, responsible for terrorism prevention and investigation (Council of the European Union, 2006). VIS has been therefore considered essential in ensuring that a suspected terrorist is not granted a visa to enter the European Union (Leonard, 2015). Another important instrument is Schengen Information System (SIS), containing alerts for the purpose of refusing entry into the EU. Second generation SIS became operational in 2013, enhanced with new specific types of alerts in order to consolidate the counter-terrorism forces (Leonard). These databases have been complemented by Eurodac system, collecting and storing biometric information of the asylum seekers. Since 2009, discussions to allow access to Eurodac to the internal security authorities have been taking place. A proposal to establish

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a system to compare fingerprints contained in Eurodac against the information held by law enforcement authorities was tabled by the European Commission in 20124.

Therefore, the EU authorities have gradually reinforced their counterterrorism arsenal with instruments for border control as well as enabling and systemizing the information on third country nationals entering the EU. Furthermore, terrorists having exploited the public means of transportation, measures have been proposed to increase transport security in the EU. One of them has been the Advance Passenger Information (API) system5, obliging air carriers to collect and transmit primary information about passenger identity to the authorities of the Member State of destination. The directive was approved under the initiative of Spain just after the Madrid bombings and concerned data from the “machine-readable zone of the passport”. Finally, the Commission proposed a border package in 2008 with a certain entry-exit system, distinguishing reliable and suspicious travellers (Brouwer, 2009). One could argue that it marks a certain transition from treating the others – third country nationals – as suspects, to holding suspicion on every traveller, notwithstanding their origin. It also illustrates how EU chose to rely on ever increasing amounts of data in continuously expanding its databases and increasing the data points.

Overall, EU counter-terrorism policy has been sometimes dubbed as “a paper tiger” (Burres, 2013), established in impressive papers, strategies and communications yet lacking operational competences at the supranational level. On the other hand, through the operational measures spanning to other areas, the EU counterterrorism policy has been arguably boosting its capabilities. It could also be noted that EU has been gradually employing the “fortress Europe” approach, expanding its counterterrorism policy to large-scale surveillance, systematic monitoring and thus stranding the freedom of movement principle in result (Bigo et al., 2015). It has also been noted that emergency situations in the past led to policy responses preferring speed over quality and democratic accountability

4_{REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment of} 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) No […/…] COM (2012) 254

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(Brouwer, 2009). The PNR proposal is clearly following all of the aforementioned trends. The following subchapter thus analyses how the proposal of the PNR directive developed itself. Thus it is exploring the development of the policy stream.

3.2.Development of the policy stream - PNR directive from its rudiments

Analysis of the policy stream concerns the development of the directive itself over the period since the early 2000s. In this case, the earlier PNR agreements negotiated with the third countries deserve an equally substantive mention. They have created a precedent for later pan-European initiatives and established the technical principles. This sub-chapter thus follows the evolution of the initiative from its rudiments until the stage it reached by the year 2014.

3.2.1. Prehistory: early agreements with the United States

In the wake of the 9/11 terrorist attacks, European Union and United States started historic negotiations on Passenger Name Record agreement on the demand by the American authorities. The agreement accorded US Bureau of Customs data on all European air passengers travelling to the United States. However, shortly after it entered into force in May 2004, European Parliament appealed it to the European Court of Justice. In May 2006 the Court judged the agreement illegal (“ECJ puts end”, 2006). Nevertheless, no international agreement meant American authorities still fining European airline companies for non-compliance with their requirements. Hence the agreement was to be renegotiated before October 2006, in order to avoid a legal vacuum. An interim agreement already introduced several principles approximating EU legal requirements. Even the biggest critics of the deal in the European Parliament at that time - ALDE political group - agreed that no agreement would have deteriorated the situation even further (“EU-US passenger-data”, 2006).

European Parliament was however not content with the so-called improvements in the privacy protection arrangements in the amended US-EU agreement. EP criticised the lack of proper safeguards to protect EU citizens against personal data abuse. In 2006 there was a strong feeling in the European Parliament that United States is imposing their