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EU: Form of deal on handing over passenger data to USA in doubt

The outcome of the row between the EU and the USA over the latter demand that details on all passengers be handed over is still unresolved. reports that the issue came up again at a full meeting of the European Commission on Wednesday, 26 November. Two options are on the table. Under the first "compromise" ("lightest") approach an internal document says:

"The lighest available procedure would not require the assent of the [European] parliament and [the Council of Ministers] could place a time-limit on its consultation with the parliament"

The second option is that because the USA's lack of data protection will not allow a finding of "adequacy" in the ad hoc "guarantees" being offered then a bilateral international agreement would be required and this in turn would fully involve the European Parliament.

The Commission does not favour this approach because, as the document goes on to say:

"The parliament's timetable could not guarantee that this matter could be resolved before the elections {June 2004]. There could therefore be a risk that the legal uncertainty would persist and it is not the US's preferred option"

Despite a few minor concessions from the US side a number of the European Parliament's demands: "cannot be met, failing a complete change of approach on the US side"

US proposal: "the list of purposes goes far beyond fighting terrorism"

The day before (25.11.03) Mr Rodota, the chair of the Article 29 Working Party on Data Protection, addressed the European Parliament's Committee on Citizens' Freedoms and Rights. Mr Rodota said that in addition to the USA the following countries had requested passenger data from airline leaving the EU - Canada, Australia, South Africa and South Korea.

He told the Committee that the Working Party had agreed that the Australian system was in line with the EU's standards and that "passenger data can be transferred to it". They were only requesting 15 categories of data as against 39 being demanded by the USA (though there is evidence that the USA currently get 43 categories). Data would only be held on 3-5% of passengers who were suspected of having committed an offence "against the Border Protection Act administered by Customs" - that on 95-97% would be immediately erased.Where there was no prosecution or no offence proven "the PNR data are destroyed". Finally, there was a Federal Privacy Commission which was independent and provided proper safeguards.

On 20 November the Working Party had written to Mr Prodi, President of the European Commission, saying that the "safeguards proposed by the US authorities are still far from satisfactory" and did not give the necessary guarantees.

The "list of categories is still too long", he told the parliament's Committee and the USA were in no position to guarantee that "sensitive data" could be filtered and excluded. The USA still wanted to keep all the data for three and a half years as against a few weeks or months proposed by the Working Party. Moreover, "the list of purposes goes far beyond fighting terrorism". Data would not be handled by a single agency, the Bureau of Customs and Border Protection, but would be transferred to the Transportation Security Agency and it has been revealed in more recent negotiations that "data will be made available to CAPPS II", in other words:

"we have a system that uses data collected... and then crosschecks it with all the data available in other data banks which are available to the American authorities including data managed by private agencies"

The issue of "citizens' rights and the existence of a genuinely independent monitoring authority still had not been addressed.

1. Speech by Mr Rodota, Chair of the Article 29 Committee to the European Parliament's Committee on Citizens' Freedoms and Rights on 25 November 2003: Rodota (pdf)
2. See Statewatch's Observatory on Passenger Data with full background and documentation

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