EU-PNR: JHA Council to agree the surveillance of airline passengers
- "This is a classic case of sacrificing democratic standards in the name of the "war on terrorism" which is meant to be defending democracy"
- data can be kept indefinitely by law enforcement agencies
- dubious legal basis: European Commission wanted the Council to delay decision so as not to deal "piecemeal with law enforcement issues"
The Justice and Home Affairs Council (JHA) meeting in Luxembourg on 29-30 April is to adopt a Spanish proposal to introduce the compulsory collection of all passenger name data (PNR) from airlines enetering the EU. Although the measure is not listed in the Background paper issued by the Council: see: JHA Background (pdf) it has - under the terms of the Amsterdam Treaty be adopted by 1 May as it is a member state initiative or it will fall.
In Statewatch's previous coverage (see below) we questioned the legal basis of this proposal: "The measure is proposed under Article 61.2.a which covers carrying out checks at external borders which is the responsibility of border and immigration officials. To give access to all law enforcement agencies to the data is dubious." This view is confirmed by the "Declaration by the European Commission" in document 8058/04 (see below) where it says that the obligation on carriers to supply personal data:
"must be interpreted in the light of its stated purpose, namely "to combat illegal immigration effectively and to improve border control"
The Commission are intending to bring a comprehensive proposal later this year on data protection and law enforcement agencies, it therefore:
"would have preferred to await the measure before dealing piecemeal with law enforcement issues"
Tony Bunyan, Statewatch editor, comments:
"It is quite extraordinary that the EU are to put place all airline passengers under surveillance before the measure is even in force in the USA - where there are substantial privacy questions to be answered before the Congress and Senate can proceed in their considerations.
The European Parliament has rejected the proposal and national parliaments were given no time to scrutinise the radically changed proposal.
To rush through such a far-reaching measure - which will affect the privacy and liberties of all - without proper parliamentary scrutiny and amendment is an abuse of the process and brings the legitimacy of EU decision-making into disrepute. This is a classic case of sacrificing democratic standards in the name of the "war on terrorism" which is meant to be defending democracy"
1. Council Directive on the obligation of carriers to communicate passenger data: 8058/04 (pdf)
2. Council Directive: Common Guidelines: 8842/04 (26.4.04) (pdf)
Previous Statewatch story
On 5 April the Council of the European Union (the 15 EU governments) requested the European Parliament to give its Opinion on the EU-PNR scheme by 22 April and added that: "if it is unable to give its Opinion by that date, the Council reserves the right to act without the Parliament's Opinion". The parliament's Committee on Citizens' Right and Freedoms did agree a Report on 5 April which unanimously rejected the proposal and at the plenary session of the European Parliament on 20 April MEPs voted by 287 votes to 225 votes (with 11 abstentions) to call for the withdrawal of the proposal. The technical decision was to refer the issue back to the Committee on Citizens Freedoms and Rights - thus not providing a formal response to the Council. However, the Council routinely ignores the Opinion of the European Parliament. Two national parliaments have maintained scrutiny reservations and these have not yet been lifted (UK and Netherlands). It is not known whether the substantially revised version of the Directive (see below) has been referred back to the other 13 national parliaments for their views.
The proposal has gone through major changes since it was first put forward in 2003. Its scope was first defined as covering all passengers, then it was changed to third country national, and then it was changed back to all passengers. Major changes to the draft proposal were agreed at the last JHA Council on 30 March. Under the Article on data protection the obligation to destroy records after 24 hours was changed to allow for the indefinite retention of data for use by law enforcement agencies. Access to the data, which had been limited to border control and immigration officials, has been extended to all law enforcement agencies. See: Report and draft Directive
The late changes also raise a legal problem. The measure is proposed under Article 61.2.a which covers carrying out checks at external borders which is the responsibility of border and immigration officials. To give access to all law enforcement agencies to the data is dubious.
In the USA, where similar proposals are being considered but a long way from being agreed, there are full Senate and Congress procedures and a major report from the US General Accounting Office has concluded that seven out of eight criteria (concerning privacy and the protection of data) have not been met.
3. Report and draft Directive
4. Statewatch: Observatory on EU-PNR
5. USA: GAO report on CAPPS II
6. ACLU challenge "watch-lists": ACLU press release (link) The ACLU case as filed (link)
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