EU draft Decision on the "adequacy" of the US "Undertakings" on access to PNR

"The US is a democratic country, governed by the rule of law and with a strong civil liberties tradition. The legitimacy of its law-making process and strength and independence of its judiciary are not in question. Press freedom is a further strong guarantee against the abuse of civil liberties.

The Community is fully committed to supporting the US in the fight against terrorism. The Community should not interpret and apply its own rules in a way incompatible with this commitment or raise obstacles to US measures to protect its own borders unless these are clearly dictated by the law of the Community or the European Union"

(Commission draft Decision declaring on PNR data protection in the USA "adequate")

"Privacy is one of the basic values of human life and personal data is the main gateway enabling entry into it. The citizens of countries that experienced a period of totalitarian regimes have that a hard experience - when privacy was not considered of value and was sacrificed to the interest of the state"

(Hana Stepankova, Czech Office for Personal Data Protection, on handing over personal passenger data to the USA, Prague Post, 11.12.03)

The Commission has produced a draft Decision declaring that the "Undertakings" provided by the USA for access to passenger record data (PNR) are "adequate" under EC law (Article 25.6 of the 1995 Data Protection Directive). In this Decision it claims that there is a "strong civil liberties tradition" in that country. There certainly is, but civil liberties groups in the USA are opposed to the collection of PNR data on passengers, the introduction of CAPPS II (Computer assisted passenger pre-screening) and the US-VISIT system (which will create life-long travel histories, see: US-VISIT Program, Increment 1, Privacy Impact Assessment (pdf).

Indeed such is the opposition in the USA that no US airlines will provide the TSA (Transport Security Administration) with passenger data in order to test CAPPS II - as a result it is running months behind schedule (see: Report and documentation and: Commission Staff Working Paper on "An EU-US Agreement on Passenger Name Record (PNR)" (SEC 2004/81, 21.1.04).

The Commission also argues above that no obstacles should be put in the way of this deal "unless these are clearly dictated by the law of the Community or the European Union". As the EU's own Article 29 Working Party on data protection has forcefully argued the "Undertakings" from the USA would, on a number of issues, be contrary the "the law of the Community" (Article 29: Report and documentation)

The Commission says that: "The Community is fully committed to supporting the US in the fight against terrorism". But this deal is not limited to terrorism. it extends to "other serious crimes". The EU-US agreement on judicial cooperation, signed on 25 June 2003, covers any suspected offence which carries a prison sentence of one year or more - an exceptionally low standard.

Tony Bunyan, Statewatch editor, comments:

"Hana Stepankova, an official from the Czech Data Protection Office, reminds us all what is at stake, that in the past it has been totalitarian regimes who have sacrificed personal privacy in the interests of secur


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