Original URL: http://www.theregister.co.uk/2006/10/10/pnr_stitchup/

US and EU stitch up airline passenger data deal

And data protection law

By Mark Ballard

Posted in Media, 10th October 2006 19:19 GMT

European data protection authorities are choking on their baguettes after seeing the detail of the data-sharing agreement the EU signed with the US on Friday. The passenger name record (PNR) agreement was presented as a formality that had been passed by the respective administrations without so much as a hiccup. But it's proving hard to swallow.

On the face of it, the agreement secured the legal basis for the US to collect personal information about anyone who flies there from Europe. The European Commission, which negotiated the agreement, wanted to ensure European airline passengers were treated fairly after their personal information was collected by US authorities conducting anti-terrorist investigations.

European data protection law prevents data being sent to another country that doesn't have equivalent protections. That's made the old PNR agreement (which was scrapped on a technicality in June by the European Court of Justice) a bone of contention in Brussels, because the US has no equivalent protection.

The new agreement was supposed to have guaranteed the same level of protection, which was in effect a gentleman's agreement, in which the US promised to play ball. The EC said it "trusted" the US would honour the deal.

Indeed, Jonathan Faull, director general of the European Commission directorate for Justice, Freedom and Security, after securing the new agreement last Friday, told journalists that it offered "comparable" protections. The Commission statement on the matter said it held the US to ensuring "equivalent" protection.

But equivalent protections have not been secured, it was revealed in a letter sent by the US Department of Homeland Security to Faull and Irma Ertman, lead negotiator for the European Council's Finnish Presidency, on Friday, after the agreement was struck.

European data protection authorities said they were "amazed" when they saw the letter yesterday because it watered down the new agreement so that it was even weaker than the last.

The contradiction reflects a split in Europe over how well people's personal data should be protected from abuse by the authorities. On the one hand, the data protection authorities and the European Parliament think the US is taking liberties with our data, while they are trying to preserve our liberties with data protection law.

On the other hand, the European Council of Ministers and the Commission are prepared to accept a lower level of protection, at least when striking agreements about sharing data with other countries. It is worth noting that Faull announced on Friday that the EC is planning its own PNR regime, which will collect information about people travelling into Europe from abroad.

Still, the new agreement was only meant to be a stopgap until a proper compromise could be negotiated. The EU purports to covet its data protection law, which states roughly that any data collected about someone should be taken for good reason, only for the specified purpose and only for as long as is reasonably needed.

The US letter shows how the European position has weakened and perhaps gives an indication of how the final agreement, should one be wrought before the new one runs out next June, might be balanced.

The letter, drafted by Stuart Baker, assistant Secretary to the US Department of Homeland Security (DHS), states how the US will interpret the agreement just signed. The old provisions that prevented it sharing data with other agencies have been thrown out. As well as US border control, the FBI, CIA and unspecified other agencies will get access to the data.

The US proposes trawling through passenger data to seek out suspicious-looking characters if it doesn't have a clear idea who it's looking for. It commits to do this "judiciously and with proportionality", though there is no US law to ensure that it does, and the DHS has already announced its intention to share data between civil and security databases.

Then the US had wanted to keep the data it collects about people for at least eight years. The EU got it to settle with three and a half years. But Baker's letter said that as the new agreement only ran for nine months anyway, that restriction had been invalidated.

The real stickler was the EU's lauded "push" system for giving the US data about its citizens. US border control has been pulling the data, which means it takes what it needs straight from airlines' passenger databases. In 2004, the US agreed to a push system, which would mean that airlines handed over only the relevant passenger information.

The Department of Homeland Security still hasn't got round to giving up its pulling habit. But it has agreed to do so. Faull presented this as a way to ensure the US could get its hands on only that data it had agreed with the EU.

But Baker's letter, said the US push system was not going to be so restrictive: "The design of the system itself must permit any PNR data in the airline reservation or departure control systems to be published to DHS in exceptional circumstances where augmented disclosure is strictly necessary," he said.

Also, the EU's requirement that the US query only 34 fields of data about each passenger, was to be ignored (not forgetting a desire in Europe for the US to query no more than 15).

"The undertakings authorize DHS to add data elements to the 34 previously set forth...if such data is necessary," Baker said.

In other words, the US would take whatever data it wanted from the airlines, regardless of what it had agreed with the EU.

This could prove to be a difficult test for Europe's data protection law. Member states, through the Council of Ministers, have unanimously endorsed the US view of PNR signed up to in the new agreement. (They have yet to pass the agreement on Thursday, but have already given diplomatic approval enough for it to have been struck).

The test will centre on whether EC data protection law has competence over the transfer of data to countries without adequate data protection when the purpose of the transfer is security. The ECJ already ruled in June that the EC administration did not have the competence to strike the old PNR agreement, thus invalidating it.

It neglected to decide on the wider issue of whether the law was competent. That's next on the menu. And the ECJ advocate general has already indicated that he might prefer to side with the security hawks if he was required to intervene again. ®