The great Passenger Name Record sell out
Uncle Sam turns Open Skies dark
Lock, stock and two smoking passports
But in future such negotiations may not even take place. More sinister for the long term, says Hasbrouck, are provisions of the Open Skies treaty that have been largely overlooked in the rush to praise the treaty's potential for opening up better competition between US and European airlines. Hasbrouck points in particular to article 8, which requires signatories to the treaty to comply with the "recommended practices" of the International Civil Aviation Organisation.
Because international treaties take precedence over national law, this article effectively transfers considerable authority to the ICAO, an unelected body with only limited input from outside the travel industry and law enforcement. The ICAO then becomes the arbiter of such decisions as requiring RFID or biometrics in passports and other travel documents, or specifying what data is encapsulated via RFID and how widely it's shared.
Under such a system there can be no public debate and any negotiating that's done will be through the ICAO, which in the past has generally been thought to be a conduit for policies that the US wants but can't necessarily get through Congress. Previous attempts at this type of data gathering, "Total Information Awareness" and the proposed airline security system CAPPS-II, met with public opposition and were cancelled, at least in name.
Yet, says Hosein: "The Department of Homeland Security has managed very quietly, through the back channels, to take the system as originally designed for cargo and apply it to people. We have no idea how effective it will be – and the EU just became complicit with it."
You look a bit dodgy to us...
We know, he says, that the US is not just using the data to match prospective travellers against a list of "bad people". Instead, they are "taking the data and running algorithms on it. They're not saying which algorithms. They decide who is a high-risk passenger and who isn't. What they do once they've processed the data is create a profile. You can't access, affect, or view your profile whether you're a citizen or not. You have no influence in deciding whether or not you are a threat".
There is no question that this is not the data protection regime that Europeans signed up for – running those algorithms would be illegal in Europe. Why the EU has been so willing to abrogate its own policies is unclear. Hosein believes it's in response to promises to extend the visa waiver programme, but that any promises the US makes to do so are unlikely to bear fruit.
"Congress likes to look tough on borders and foreigners," he says.
The thing is that data protection is like the starship Heart of Gold ("Be the envy of other major governments"). If the US collects all this PNR data... well, why shouldn't the EU have it, too? And once the data is there, why not use it for general law enforcement? The overall result is a massive expansion in government profiling of all of us – and a significant diminution of our ability to do anything about it. ®