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EU: Travel surveillance: Commission attempts to soothe PNR critics with "workable compromise"
28 January 2015
A leaked European Commission note
sets out considerations on "the best way forward to respond to the different calls for a swift adoption of the EU PNR [Passenger Name Record] proposal," which would introduce blanket law enforcement surveillance and profiling of all passengers arriving in the EU by air.
The European Parliament's Civil Liberties Committee (LIBE) voted against the proposed PNR Directive in April 2013, but EU officials and national politicians have repeatedly demanded agreement on the legislation.
These calls reached a crescendo following the terrorist attacks in Paris earlier this month, with politicians and officials claiming the attacks made clear the necessity of an EU PNR system. As Gilles de Kerchove, the EU's Counter-Terrorism Coordinator, said to the LIBE committee yesterday (27 January) during a session on counter-terrorism: "Never let a serious crisis go to waste."
But not everyone is convinced. Jan Phillip Albrecht, a Green MEP and key critic of the PNR proposal, told The Guardian:
"Instead of a full take of PNR [passenger name record] data, we need a focus on suspects and risk flights. The Paris attacks have shown that mass retention was not effective in fighting jihadis.
"The proposed surveillance of all travellers is a symbolic measure on the cost of EU citizens' civil liberties and effective security."
The Commission's note sets out what it calls:
"…a workable compromise between the positions expressed so far by the political groups of the European Parliament, on one side, and by the Council in its General Approach of April 2012, on the other. The proposed compromise takes due account of the judgment of the Court of 8 April 2014 on the Data Retention Directive, as far as the judgment appears applicable to PNR…
"…The objective of these suggestions is to strengthen the data protection safeguards, while preserving the operational effectiveness of the PNR proposal to fight terrorism and serious transnational crime."
(emphasis in original)
Amendments proposed in the leaked Commission note include:
Changing the scope from "terrorism and serious crime" to "terrorism and serious transnational crime";
Reference to all the offences covered by the European Arrest Warrant is replaced by "a shorter list of offences that a relevant to transnational travel";
Reducing the retention period of the "full PNR" from 30 days to seven days, and changing the longer "depersonalised" retention period to four years in relation to "serious transnational crime" (it remains five years for terrorism);
"establishing stricter conditions for access to PNR data" including "the appointment of a Data Protection Officer within the national units responsible for the processing of PNR data";
"explicitly spelling out the rights of passengers to have access to their PNR data (retained by the PIU) and to request the modification or erasure of their data";
Using Europol's SIENA (Secure Information Exchange Network Application) system as a channel for exchanging PNR data and giving the possibility for Europol to request access to PNR data.
None of the amendments (see below) would alter one of the key planks of the Directive. This is the requirement to compare to PNR data to profiles in order to detect "previously 'unknown'" persons, and to use PNR data to create new profiles, as set out in paragraph 7 and Article 4 of the text broadly agreed by the Council in April 2012.
Paragraph 7 says:
"PNR data enable to identify persons who were previously "unknown", i.e. persons previously unsuspected of involvement in terrorism or serious crime, but whom an analysis of the data suggests may be involved in such crime and who should therefore be subject to further examination by the competent authorities… the assessment criteria shall be defined in a manner which ensures that as few innocent people as possible are identified by the system." 
The note also contains "points for further discussion", which include "further assessment" of the possibility of collecting PNR data from intra-EU flights.
The Commission initially considered extending blanket surveillance to rail and sea travel as well, and it is likely that if a PNR Directive is agreed, this issue will come up again.
The Impact Assessment that accompanied the 2011 proposal said this "could be considered in the future, once we will have learned from the experiences with PNR collection from air travel." 
If these proposals are accepted, the Council and Parliament could amend the current text. Alternatively, the Commission could publish a new proposal - but this would take significantly longer than amendments.
The Commission's note suggests that, if it were to publish a new proposal, "informal trilogues [between the Council and Parliament] would start at the earliest under the Luxembourg Presidency," which covers the second half of this year. "This most likely would delay the possible adoption of an EU PNR directive for at least 6 to 9 months," says the note.
In the meantime, however, work will be ongoing on national PNR systems and their interconnection. The leaked note remarks:
"14 Member States are currently setting up national PNR systems which will be regulated through national laws on PNR. Some Member States have already adopted national PNR laws (including France) and others are preparing them. A growing number of Member States are expected to have PNR laws in place in early 2016 when most PNR projects co-funded by the EU under a targeted call will finish."
The Italian Presidency stated in December last year that: "Several Member States… will consider interconnecting future and existing national systems."  If all Member States did so, it would in effect create an EU PNR system from the bottom-up.
As Statewatch remarked in October last year: "the more national PNR systems that are in place, the greater the impetus for a harmonised EU framework to govern them". 
The UK government has also proposed an EU-wide legal framework for the acquisition by law enforcement authorities of Advance Passenger Information (API) from flights within Europe. API is generally made up of data stored in passports. 
European Commission, 'EU PNR - the way forward', 26 January 2015
'Travel surveillance: PNR by the back door', Statewatch News Online, October 2014
'"Foreign fighters" phenomenon spurs dozens of new counter-terrorism policies', Statewatch News Online, June 2014
'EU-PNR SCHEME: UK seeking to extend Commission proposal to cover intra-EU flights from the start', Statewatch News Online, March 2011
 Alan Travis, 'European counter-terror plan involves blanket collection of passengers’ data', The Guardian, 28 January 2015
 Presidency, 'Proposal for a Directive of the Council and the European Parliament on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime', 8448/1/12 REV 1, 13 April 2012
 Statewatch, 'Summary of policy options analysed in Commission Impact Assessment', February 2011; 'EU-PNR SCHEME: UK seeking to extend Commission proposal to cover intra-EU flights from the start', Statewatch News Online, March 2011
 Italian Presidency, 'Report on measures with regard to foreign fighters', 16 December 2014
 'Travel surveillance: PNR by the back door', Statewatch News Online, October 2014
 UK delegation, 'Legal framework for intra-EEA API - Discussion document', DS 1335/14, 22 October 2014