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Passenger data deal based on plan opposed by privacy regulator

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The European Commission has published a plan (pdf) to compel EU members to gather more information on air passengers travelling in and out of the EU in what it says is an attempt to combat terrorism.

The proposal depends on a soon-to-be adopted data sharing policy which has been opposed by Europe's privacy regulator the European Data Protection Supervisor (EDPS). It has also been opposed by civil liberties campaign group Statewatch, which said that it contributed to making Europe "the most surveilled place in the world".

Since 2004 the EU has required airlines to provide to countries Advance Passenger Information (API), a limited amount of biographical information that is contained in passports. It now proposes the compulsory passing on of Passenger Name Records (PNR), a more extensive collection of information including contact details, baggage information and 'general remarks'.

The proposal would create a single state agency in every country, the Passenger Information Unit (PIU), to which airlines would have to send PNR data for everyone entering or leaving the EU. It would not be necessary for flights within the EU or within national borders.

The PIU will be responsible for processing that data and making a risk analysis or profile of people on the PNR lists. Those profiles will be retained for 13 years.

"The purpose of this proposal is to have air carriers make PNR information available to law enforcement authorities in the EU Member States and help them in the prevention and fight against terrorist offences and organised crime," said a commission statement.

Statewatch editor Tony Bunyan said the increased monitoring was unwarranted. "This is yet another measure that places everyone under surveillance and makes everyone a suspect without any meaningful right to know how the data is used, how it is further processed and by whom," he said. "Moreover, the profiling of all airline passengers has no place in a democracy."

The office of the European Data Protection Supervisor (EDPS) Peter Hustinx said it would not issue an opinion on the proposal until early December. However, a key part of the plan rests on a separate proposal by the Commission which Hustinx does oppose.

The PNR plan says the transfer of the data outside of the EU will be governed by a commission framework for data protection in police matters. But the supervisor objects to that plan, meaning he is unlikely to endorse the new airline system.

"The soon-to-be-adopted Framework Decision on Data Protection in criminal matters will govern all data processing under the proposal, as well as the transfers of data to third countries," said the commission statement.

The transfer of data to third countries is controversial because most countries have weaker data protection systems in place than the EU.

The EDPS has previously said data sharing should not be put in place in what the EU calls the third pillar – which covers matters such as policing, organised crime, and terrorism – until an over-arching framework of data protection in that area is in place.

Hustinx previously told OUT-LAW the deal on which the new PNR arrangement will rely was signed in the absence of those protections. "I can once again note that an instrument facilitating exchange of personal data has been adopted without the necessary framework for third pillar data protection being in place. I very much regret that," said Hustinx in June.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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