Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
That question has taken on new significance after the Paris terrorist attacks, which have stoked fears that militants in Europe might exploit the Visa Waiver Program (VWP)—under which citizens of 38 countries may travel to the United States without a visa—to carry out similar attacks here. Some influential members of Congress (see here and here) are now calling for major changes to the program. The United States faces a profound and growing threat from radicalized Europeans, at least 3000 of whom have traveled to Syria to fight for the Islamic State. But the solution is not to scuttle the VWP. The solution is to strengthen its security requirements. Indeed, if the program’s intelligence sharing measures are fully implemented, it has the potential to offer even greater security than the visa-based system it replaces. As Paul has described here, the VWP was established in the late 1980s to facilitate travel between the U.S. and our closest allies. A country was eligible to join if its citizens posed a low risk of illegal economic migration—i.e., overstaying in search of work. The measure of this risk was the country’s visa refusal rate, which reflects consular officials’ predictions that applicants would remain here unlawfully. The VWP’s original members were the wealthy, industrialized democracies of Western Europe, along with a few other prosperous nations like Australia and Japan. After 9/11, the VWP’s focus shifted dramatically. Its key priority was no longer stopping economic migration but identifying international terrorists. In 2007, Congress enacted legislation that called on member countries to implement a suite of new security measures. (The law also temporarily relaxed the statutory requirement of a low visa refusal rate, making it possible for additional countries like the Czech Republic and South Korea to join—although Poland, a key ally, regrettably remains excluded.) The most important of these concern intelligence sharing. Shifting from a visa requirement deprives the government of certain information about visitors to this country. Most significantly, WWP travelers no longer submit to in-person interviews with consular officials—a lost opportunity to spot terrorists. (Of course, a visa-based system isn’t infallible. All 19 of the 9/11 hijackers were able to obtain visas, and Christmas Day bomber Omar Farouk Abdulmutallab succeeded in boarding a flight to Detroit when officials failed to revoke his visa amid reports that he’d been radicalized.) The VWP compensates for this information loss by generating alternative sources of data that can be used to screen for threats. For instance, the 2007 legislation requires member countries to inform the United States about lost and stolen passports, reducing the risk that terrorists might travel on forged documents. Members must enter reciprocal agreements with the U.S. to exchange watchlists of known and suspected terrorists—the Homeland Security Presidential Directive 6 (HSPD-6) agreements. They also must agree to mutually share criminal history information, including biometric data like fingerprints and DNA—the so-called Preventing and Combating Serious Crime (PCSC) agreements. The 2007 law further requires VWP travelers to provide basic biographic information, such as names and passport numbers, through an online form called the Electronic System for Travel Authorization, or ESTA. A separate statute directs airlines to turn over reservation data for all U.S.-bound passengers, including from visa waiver countries. These measures enable authorities to check travelers against terrorism watchlists and, using link analysis and other techniques, to identify connections between known terrorists and their unknown associates. This substitute data may well have more intelligence value than the opportunity to conduct face-to-face interviews with visa applicants, and the U.S. is unlikely to have access to it without the VWP. In short, the VWP gives the United States leverage to acquire critical intelligence information that foreign governments otherwise might be reluctant to provide. Curtailing the program would substantially weaken other countries’ incentives to share it. This is not to suggest that the VWP is perfect. As Congress and the administration look for ways to make the program more secure, there are at least two reforms that merit consideration. First, the existing intelligence sharing arrangements should be fully implemented. The vast majority if not all of the 38 visa waiver countries have signed the required agreements, but implementation appears to be more spotty. According to a 2012 GAO report, PCSC sharing in particular has been stymied by technological challenges that make it difficult for U.S. systems to interface with those of VWP members. An obvious and easy reform is to invest in the necessary network and system upgrades. Second, intelligence sharing should be expanded to help identify yet-unknown threats. The problem with HSPD-6 and PCSC exchanges is that they can only flag travelers who’ve been watchlisted or who have criminal records. They aren’t much use at detecting terrorists who have managed to escape notice—the so-called “clean skins.” A solution would be to share the airline reservation data of travelers who’ve flown between visa waiver countries and hot spots like Iraq, Syria, and Yemen. Not only would that make it possible to track the movements of known threats—such as Charlie Hebdo gunman Said Kouachi, who is now known to have traveled from France to Yemen by way of Oman in 2011—it also would allow authorities to flag passengers whose travel patterns are consistent with those of foreign fighters and who therefore might merit a little extra scrutiny at airports. The difficulty here is that European countries do not uniformly collect airline passenger data but, as the Post reports, some leaders are pushing to do so in the wake of the Paris attacks. Defenders of the Visa Waiver Program usually point to its economic advantages—in 2012, visa-free travel brought 19.1 million visitors to our shores, along with millions of trade and tourism dollars. Those benefits are significant. But in a post-9/11 world, the VWP also has to be sound from a security standpoint. My sense is that it is. The program is a carrot that induces members to provide vital intelligence the U.S. otherwise would lack, and more information sharing would only strengthen it. Nathan A. Sales is associate professor of law at Syracuse University, where he teaches national security law, administrative law, and constitutional law. From 2006-2007, he was Deputy Assistant Secretary in the policy office at the Department of Homeland Security, and he previously served in the Justice Department’s Office of Legal Policy. After graduating from Duke Law School, he clerked for Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
Is the closure of the anonymous videochatting site a victory against online sexual abuse, or a step onto a slippery slope?
Child sexual abuse and exploitation online is a serious issue. Targeting end-to-end encryption is not the solution.