A brief June 25 Washington Post article reports that Homeland Security Secretary Napolitano and Salvadoran Foreign Minister Martinez have agreed to share criminal information about deportees. The article goes on to note that the United States has a similar agreement in place with Mexico. DHS should be congratulated for this and other innovative agreements to share information to combat serious crime, especially serious transnational crime such as trafficking and smuggling.
In fact, over the past years more than a dozen agreements to share information about criminals have been signed with our Visa Waiver Program (VWP) partners. Known as Preventing and Combating Serious Crime (PCSC), these agreements stem from the more robust VWP information sharing requirements mandated by the 9/11 Act.
A PCSC agreement provides for the reciprocal exchange of biometric and biographic data and any relevant underlying information for law enforcement purposes. It works like this: The parties provide each other automated access to their fingerprint (and potentially DNA databases) on a hit/no hit basis. Each party can query the other’s database and, if a match is found, can request identity and other information about the individual through established, informal police-to-police channels. The parties may also “spontaneously” share terrorism or criminal information with each other, even without a query being made. This spontaneous or voluntary sharing may occur on a case-by-case basis or in bulk and may be used for criminal investigations, for preventing a serious threat to public security, and for other related uses. The PCSC contains extensive provisions designed to ensure that the data is protected from any unlawful release and that data will be swiftly corrected or deleted at the request of the party that originated and owns the data.
DHS and the Department of Justice lead PCSC negotiations for the U.S. government. Most recently, PCSCs have been signed with Finland, Spain, Portugal, Italy and Greece. Additional signatories include Germany, the Czech Republic and South Korea.
Although more agreements are on the way, significant work remains to be done to complete bilateral agreements with each VWP country in accordance with the 9/11 Act. A few countries have resisted the VWP’s core information-sharing requirements due to domestic political concerns or by citing restrictive privacy laws. DHS has continued its efforts to find common ground, and while no country has yet arrived at the point of outright non-compliance, several appear to be heading in that direction. It is therefore imperative for DHS—supported by the Departments of State and Justice—to continue to communicate a firm message on the necessity of timely compliance and clearly signal the costs of backward movement to VWP participants.
It is equally important that DHS be clear and consistent regarding the potential consequences of a failure to comply with the requirements, up to and including termination from the program. This method proved to be a successful approach for previous security enhancements to the VWP, such as mandating the adoption of electronic passports for VWP travel.
If a VWP participant continues to prove unwilling to comply with statutory standards, DHS would be forced to consider suspension or termination of that country from the program until the legal requirements are met. While necessity of suspending or terminating VWP countries from the program in the event of noncompliance is clear, the diplomatic, political and economic consequences of such a decision could be far-reaching. Even so, the Department’s relationship with Congress, which has demonstrated a strong interest in the VWP, as well as the broader goals of securing our borders and enforcing our immigration laws, depend on holding VWP members to these high standards in a timely manner.