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The European Commission's rules for transferring air passengers' details to destination countries are still not entirely justified, according to EU privacy watchdog Peter Hustinx.

Hustinx is the European Data Protection Supervisor (EDPS) and has published an official opinion calling into question the need to transfer passenger name records (PNR) on every passenger to a destination country for every flight.

"The EDPS considers that the bulk transfer of data about innocent people for risk assessment purposes raises serious proportionality issues," said the opinion. "The EDPS questions in particular the proactive use of PNR data. While 're-active' use of data does not raise major concerns, as far as it is part of an investigation of a crime already committed, real time and proactive use lead to a more critical assessment."

Hustinx, in the opinion, said that it was not reasonable to disclose one person's personal data because they might cause harm in the future.

"Neither the notion of risk indicators, nor the notion of 'risk assessment' is sufficiently developed, and the latter could easily be confused with the notion of 'profiling'," said the opinion. "This similarity is even strengthened by the alleged objective which is to establish 'fact based travel and behavioural patterns'."

"The EDPS questions the link between the original facts, and the patterns deduced from these facts. The process aims at imposing on an individual a risk assessment – and possibly coercive measures – based on facts which are not related to this individual," it said.

The EDPS is the watchdog for EU bodies themselves and provides data protection advice to EU bodies on policies they develop.

The opinion said that the EU Commission's development of rules was not proceeding logically. It should develop rules for inside the EU first, then use those as a basis for rules on transfers to third countries. Instead, it said, the Commission is doing the reverse.

"To ensure consistency, the EU should agree on its internal instruments and on the basis of these internal instruments it should negotiate agreements with third countries. The global agenda should therefore concentrate first on the general EU data protection framework, then on the possible need for an EU PNR scheme, and finally on the conditions for exchanges with third countries, based on the updated EU framework," said the opinion.

"The EDPS is aware of the fact that, for different procedural and political reasons, this ideal order is not being followed in practice," said the opinion.

It said that negotiations on third country transfers should take account of decisions made relating to transfers within the EU, and that negotiations with the US should be linked to an ongoing negotiation on data sharing for general law enforcement.

The opinion deals with issues raised in an official Commission Communication on PNR outlining general principles it will apply in negotiating with third countries about transfers.

Hustinx said in the opinion that parts of the Communication ignored advice given by him in the past and by the Article 29 Working Party, which is made up of all the EU nations' data protection watchdogs.

"PNR schemes presented in the Communication do not per se meet the necessity and proportionality tests as developed in this opinion and in previous opinions of the EDPS and the Article 29 Working Party," it said. "To be admissible, the conditions for collection and processing of personal data should be considerably restricted. The EDPS is in particular concerned about the use of PNR schemes for risk assessment or profiling."

The EDPS also objected to the Communication's treatment of sensitive personal data.

"The Communication indicates that sensitive data shall not be used unless in exceptional circumstances. The EDPS deplores this exception," it said. "He considers that the conditions of the exception are too broad and do not bring any guarantees ... he therefore calls for a complete exclusion of the processing of sensitive data, as a principle."

PNR deals have proved controversial, with the European Parliament rejecting Commission plans on deals with the US and other countries. The Commission is in the process of complying with Parliament demands that it lay out principles to govern all PNR deals with third countries.

See: The Opinion (9-page / 60KB PDF)

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

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