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Privacy chief OKs sharing criminal records if privacy tightened

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Europe's privacy regulator has said that he will back a pan-European criminal records system only if specific data protection measures are put in place. Because the system deals with crime and security, EU data protection law does not currently apply to it.

The European Data Protection Supervisor (EDPS) Peter Hustinx has said that the planned system to connect the criminal records databases of EU member states is a good idea, but only if the data protection regime around it is strengthened.

EU data protection laws do not apply to crime and security, areas in which EU powers are diminished. "This is unfortunate for the obvious reason of a lack of protection for the data subject, in particular since the processing of personal data relating to criminal convictions is of a sensitive nature," said an EDPS Opinion (pdf) on the system, the European Criminal Records Information System (ECRIS).

"The EDPS proposes adding a provision to the decision stating that Regulation (EC) No 45/2001 shall apply to the processing of personal data under the responsibility of the Commission," it said. Regulation 45/2001 forces EU bodies to process personal data in line with data protection laws.

Hustinx also insisted that any legal framework establishing the system specifically enshrines data protections.

"In Article 6 [of the Framework Decision establishing the ECRIS] reference must be made to a high level of data protection as a precondition for all the implementing measures to be adopted," said the Opinion. "The EDPS supports the present proposal to establish ECRIS, provided that the observations made in the present opinion are taken into account."

Hustinx suggested that the national data protection authorities in each country be given a formal role in coordinating the data protection work related to the system.

The planned system is not a giant pan-European database of criminal records but a network connecting the various national databases. Hustinx has welcomed that structure, saying that it avoids unnecessary duplication of personal data, but warned that it also carries certain risks.

"In practice, the division of responsibilities between the central authorities of the Member States does not work by itself. Additional measures are needed, for instance to ensure that the information kept by the sending and receiving Member State (state of conviction and state of nationality) are kept up to date and identical," said the Opinion.

"This architecture provokes a great diversity in the way it is applied by the different Member States, which is even more apparent in a context of great differences between national legislation (as is the case with criminal records)," it said.

Hustinx has also called for clarity on who would operate the system itself. He said that the European Commission should be responsible for the software connecting the databases and not individual countries, as the plan currently states.

He also said that any text should make it absolutely clear that the Commission is generally responsible for the communication infrastructure underlying the system.

"The processing of personal data relating to criminal convictions is of a sensitive nature, and the confidentiality and integrity of criminal records data sent to other Member States must be guaranteed," said Hustinx in a statement. "It is therefore paramount that high standards of data protection be applied to the functioning of the system, which should ensure a solid technical infrastructure, a high quality of information and an effective supervision."

The European Commission has previously made plans to ease the sharing of data in what is called the 'third pillar' of government, the area of crime and security. Hustinx has criticised and opposed the more wide-ranging proposals, claiming that one 2007 plan a "lowest common denominator approach that would hinder the fundamental rights of EU citizens".

Copyright © 2008, OUT-LAW.com

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

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