"EU debates balance between security and data protection for air travel"

Monday, September 11, 2006

EU debates balance between security and data protection for air travel
Umited Kingdom - PublicTechnology.net


With the 30 September deadline imposed by the European Court of Justice for
the EU to end passenger data transfers to the US rapidly approaching, the
European Parliament has adopted a report calling on the US to ensure that it
offers adequate protection of European passenger data and that sufficient
safeguards are in place. It is asking the Council to negotiate an interim
agreement, valid until November 2007 only, with MEPs observing the
negotiations. 

Subsequently, EP wants to have joint decision-making rights (together with
the Council of ministers) over the negotiation of the agreement after
November 2007 and on an eventual EU policy on passenger data. 

Parliament's two-step strategy on PNR

The Parliament proposes a two-step negotiation strategy. According to the
rapporteur, Sophia IN 'T VELD (ALDE, NL), the EU should reach a new
short-term international agreement to run for the period covered by the
original, now annulled, deal, with MEPs present at the negotiations as
observers.

MEPs want to ensure that the US offers adequate protection of European
passenger data and that sufficient safeguards are in place. This would in
particular mean ensuring that deficiencies already identified in the current
agreement be rectified, such as the switch to a PUSH system - US officers
should request the specifically required data on a case by case basis,
instead of being granted access to the full database - and reducing the
number of PNR data fields which can be checked. 

For the medium and long-term, MEPs propose "a more coherent approach (...)
towards the exchange of passenger data". By the time of the review of the
agreement in 2007, MEPs want the Council to give Parliament full co-decision
rights on such issues so they can ensure future agreements are properly
respect data protection safeguards. Such a change would mean invoking the
so-called "passerelle" clause of the Treaty, which allows the Council, by a
unanimous decision, to move policy areas from decision making by unanimity
in Council and consultation of Parliament to qualified majority voting in
Council and co-decision with Parliament.

Finally, MEPs also propose a dialogue this year with parliamentarians from
the EU, US, Canada and Australia, to help prepare for the review.

Debate preceding the vote 

Opening the debate, Justice and Home Affairs Commissioner Franco FRATTINI
said that the situation following the Court of Justice's decision to strike
down the EU-US agreement on passenger name records (PNR) "underlines the
need for a single legal basis for justice, liberty and security issues" and
for "communitarisation of the third pillar". In this connection he had
called on EU ministers to favour use of the "passerelle clause". 

The Commissioner stressed that the new agreement being negotiated with the
USA "should include the same content" as the old one. However, it could also
incorporate "rules and procedures which effectively restrict the use of PNR
data by the United States authorities". At all events, to protect public
safety all efforts must be made to ensure the existing agreement is replaced
by 30 September.

The Commissioner told MEPs that negotiations on a new agreement are due to
start tomorrow in Brussels and a draft text has already been sent to the US
side. The talks will be led by the Council, assisted by the Commission.
However, "the Commission intends to fulfil its obligations under the
inter-institutional agreement to keep Parliament fully informed throughout
the negotiations". He would report regularly to MEPs on the matter,
including at the meeting of the EP Civil Liberties Committee on 12
September.

He pointed out that if no new agreement is in place by 1 October, air
carriers flying from Europe to America risk legal complaints from EU
citizens because differing national rules will apply on the transfer of PNR
data to the United States. It was thus very important to "guarantee legal
certainty with an agreement at European-level, to ensure a high level of
security and at the same time privacy protection for our citizens".

Sophia IN 'T VELD (ALDE, NL), Parliament's rapporteur on PNR said the debate
had to be seen in a broader context of the methods used to fight terrorism,
especially given President Bush's statement on the existence of secret
detention camps outside the US. She stressed the importance of Europe
speaking with a single voice on this subject, as well as proper
parliamentary scrutiny meaning co-decision powers for the European
Parliament. 

In the short-term, she stressed the importance of re-negotiating the
agreement between the EU and the US before the end of September stating that
there were rumours circulating that the US might favour bilateral
agreements. In the longer term, parliamentary scrutiny should be ensured.
The rapporteur also underlined the importance of "proportionality" and the
creation of a parliamentary transatlantic dialogue in order to heal the rift
between Europe and the US on this subject.

Carlos COELHO (EPP-ED, PT) stressed his group's support for the goal of
combating terrorism but said it was keen to see cooperation not just among
EU Member States but particularly with the United States. Effective
cooperation meant that an "EU-US agreement was better than 25 bilateral
agreements". There must be no legal vacuum. Therefore the EPP-ED hoped to be
able to vote soon on an interim agreement before turning to the longer term.


He referred to the agreements concluded by the USA with Australia and
Canada, saying "they have acceptable levels of proportionality" on the scope
and type of data that can be collected as well as oversight by an
independent authority. He added "We need dialogue between the EU, the US,
Canada and Australia so we can prepare for the 2007 review and a global
approach on PNR". As regards cooperation within the European Union itself,
it was time "to move from words to facts", he concluded.

Martine ROURE (PES, FR) said the Socialists also favoured a two-pronged
strategy: an interim agreement by 30 September plus negotiations on a new
agreement for 2007. But an interim agreement should not be concluded
hastily. Parliament must be kept fully informed of the talks, as should
national parliaments, and it was important that all undertakings given
should be implemented and respected by the Americans. 

Mr Frattini said he had made proposals at an informal EU summit in London on
PNR data. Positive biometric profiling on a voluntary basis was among the
issues discussed. What was the status of this summit, she wondered, "where
important proposals were discussed without Parliament being involved"?

Regarding a possible future European PNR system, this must "not allow
circumvention of Community or national legislation on protection of personal
data of citizens". Proposals by the Commission would only be acceptable if
we adopt a framework decision on data protection under the third pillar.

On behalf of the Liberals, Sarah LUDFORD (ALDE, UK) voiced concern at a
recent statement by the head of US Homeland Security, who had said he "wants
to analyse PNR records in conjunction with current intelligence to identify
high-risk travellers who are 'unnamed threats'". He even wished to share
such information routinely with Immigration, the FBI and "our allies in
London".

There was also a danger, she said, of profiling on the basis of stereotypes
of terrorists. "We need a very good explanation of what PNR data is being
used for in the US", she stressed.

Above all, however, there was "a need for a coherent EU policy". Recent
events had given a picture of "a disunited Europe, with the Member States
running around like headless chickens". In fact, "we are ineffective,
dysfunctional and we are letting our citizens down". There was a clear need
for an EU policy but it must be one that safeguards privacy.

Cem ÖZDEMIR (Greens/EFA, DE) said that the vast majority of MEPs were in
favour of strengthening security and co-operating with the US where
possible, but were opposed to the current proposal on PNR: The transfer of
data had to take place under "reasonable conditions". The legal basis and
the scope of the transfer had to be re-examined. 

Giusto CATANIA (GUE/NGL, IT) was also opposed to the proposed agreement and
said that the European Parliament had been excluded from the debate. Direct
transfers of data to should be avoided.

Gerard BATTEN (IND/DEM, UK) said that, following the Court of Justice's
decision, the only point that would be changed would be the legal basis for
the agreement. The Council would simply continue to ignore the Parliament
and it would be better for Member States to agree bi-lateral agreements with
the US.

Non-aligned MEP, Frank VANHECKE (NI, BE) said that his phone had been tapped
by "state authorities" but little attention had been paid to this. The
rights of the European traveller should be protected, he said, but greater
transfers of data was the "price to pay" for greater security. 

British Speaker 

Michael CASHMAN (PES, UK) stated that an agreement with the US is essential
if the fundamental rights of EU citizens are to be protected. In the absence
of an agreement, he pointed out that the US will quite legally ask
passengers to sign a data waiver, which would mean that any notion of
EU-wide data protection would be absolutely and fundamentally lost. Mr
Cashman also stated that an attack on any one EU Member State is an attack
on all Member States because of the common values shared by EU citizens. 

Response to the debate

Responding to the debate, Commissioner FRATTINI made a number of points. 

Firstly, he said some speakers appeared to have misinterpreted the Court of
Justice's ruling, regarding it as a victory for the EU and for Parliament.
In fact, he argued, "that ruling was a great defeat for Community interests,
for this Parliament and for the Commission". It had established that this
subject was not an area of Community competence and that it was an area
where EC privacy directives did not apply. "That ruling, which has to be
respected, was a distinct defeat for all of us and we should say that".

He added that if no agreement was reached now, EU citizens "will see a
reduction in the protection of their personal data", as they will continue
to travel but will have to make individual declarations. But if an agreement
is reached, "the protection of EU citizens' rights will not be
discretionary, as it would be with bilateral agreements between the US and
individual carriers".

Secondly, he emphasised that Europe's problem was not with the US but with
terrorists, such as those who had been on the point of perpetrating attacks
in the UK and Denmark this summer. The EP would be kept informed about the
progress of negotiations for an agreement but ultimately "the need is for
more cooperation with the US, not less". 

Lastly, further work was needed in some areas. He would seek to convince the
Council to adopt a framework directive on personal data. He also favoured a
move to the PUSH system and hoped that, thanks to new technical advances,
such a system could start functioning in a few weeks' time. He promised to
speak in detail about the London summit referred to by Martine Roure (PES,
FR) when he appeared before Parliament's Civil Liberties Committee next
week. Lastly, he said that positive profiling should be seen as a benefit,
as "it can mean you spend less time at borders" but "negative ethnic or
religious profiling is clearly unacceptable".

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