Original URL: http://www.theregister.co.uk/2007/03/27/pnr_flounders/

Brussels downbeat on US passenger snoop plan

PNR deal yet to take off

By Mark Ballard

Posted in Law, 27th March 2007 15:35 GMT

Transatlantic talks over the US grab for European personal data in its war on terror are floundering, the European Parliament heard yesterday.

US negotiators have told the Europeans that an agreement over its demand for Passenger Name Records isn't necessary, possibly putting a deal beyond the reach of the German Presidency of the European Union.

Hans Jurgen Forster, lead negotiator for the Presidency, told a public hearing of the European Parliament last night: "A new agreement will potentially run into the Portuguese Presidency. This is something the Americans will need to be made aware of."

A combination of factors could hinder attempts to strike a deal before the current, interim PNR agreement runs out on 31 July, just a month after the Portuguese Presidency begins.

"People expected the negotiations to be difficult and they are," said Forster.

"The US doubt the need for a new PNR agreement. They even think a short extension of the existing interim agreement is unnecessary," he said.

The US wants to ditch the old agreement, which is using provisions based on the first PNR deal, signed in 2003: "The US feel that it is up to them to decide on things like data retention. They feel it is a matter of national sovereignty."

The talks would wait for the US to deliver a new set of undertakings that could be negotiated, added a European Parliament press release that detailed part of Forster's statement lost because the institution's public service broadcasting channel cut him short.

The last view the US gave of its undertakings under the old PNR agreement rode roughshod over the deal, according to the Europeans. That view, provided by Stewart Baker, assistant secretary for policy at the US Department of Homeland Security, and US lead in the talks, effectively told the Europeans that the US would treat their data how it wanted anyway.

Some members of the European Parliament, meanwhile expect that the PNR agreement will be made redundant by the Open Skies agreement for air transport, which is due to be signed in Washington on 30 April. Open Skies contains security provisions that experts at the Electronic Frontier Foundation fear might provide a legal basis for PNR and other US collations of European personal data such as its Automated Targeting System, which builds database profiles of people on its controversial watch-lists.

ATS broke the US' existing PNR agreement with Europe in ways that were remarkably similar to those items in Baker's interpretation that have irked Brussels since October, according to information supplied to the European Commission by the American Civil Liberties Union in January.

Concerns include that data about European airline passengers would be collected for purposes for US interests other than merely fighting terrorism and organised crime, would be used to create database profiles and "risk scores" that would determine the way people were treated by the system, and that this data would be shared widely with other US departments and that it would be kept for 40 years. Europeans also have no course of redress should they discover the system contains incorrect data.

Jonathan Faull, lead PNR negotiator for the European Commission, told the Parliament that Baker wrote with assurances on 15 December that the data protection provisions the Europeans had imposed on the US in the last PNR agreement would be imposed on European data stored in the ATS as well.

"Assistant secretary Baker of the DHS confirmed clearly that the ATS in no way supersedes or alters the agreement signed in October," he said, insisting also that there would be a PNR agreement.

However, those in Brussels pushing for the protection of data about European citizens from the US, are as sceptical of Baker's assurances now as they were last October when he hit them with the US's interpretation of the interim agreement. They don't believe it had any legal standing. It was merely an agreement between the US and EU executives anyway. Open Skies, which as a treaty will be debated in Congress and the European Parliament, will be taken seriously - and privacy campaigners are for now very worried about it.

MEP's are yet hopeful. Sophie Int-Veld, the Dutch MEP acting as rapporteur for the Parliament on the PNR talks, told The Register before the hearing that shifting sands in the US Congress would lead to greater co-operation between the houses on transatlantic data sharing arrangements like PNR. They've both got problems reining in their executives, apparently. Their co-operation on privacy will become more important as fledgling talks for an over-arching transatlantic data protection agreement progress. Till now, the Commission has kept the Parliament at arms length. MEPs will be in Washington for a pow-wow on their mutual problems in April.®