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28th May 2022

MEP: Swift 'secrecy' may hamper new data deals with US

The secrecy in transposing an agreement allowing US investigators to access EU banking data for anti-terrorism purposes has irked MEPs who warn the European Commission and member states they may block other transatlantic data deals.

Last year, the so-called Swift agreement was the 'cause celebre' that made the European Parliament for the first time show up on the Obama administration's radar screen. After they vetoed the deal, in February 2010, MEPs managed to win a number of concessions, including as a specially appointed EU person to oversee the transfer of banking data and a role for the bloc's police co-operation agency, Europol, in approving demands for data.

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  • MEPs want to have a closer look at how data is being transferred to the US (Photo: Photo: Xoe Cranberry)

But more than half a year after the new deal came into force, MEPs are increasingly worried that the agreement is being circumvented and that any request for information is being stonewalled by EU institutions behind a standard "top secret" answer.

A meeting behind closed doors at the end of January with Europol director Rob Wainwright failed to give satisfactory answers to MEPs dealing with the dossier, not even to a question requesting a rough estimate of the volume of data being handed to the US.

"None of us understood why that meeting was in camera [held behind closed doors]. It could have very well been public, as there was no information at all communicated to us," recalled Dutch Liberal MEP Sophie in 't Veld.

Seeing it as "a symptom of a widespread culture of secrecy and reluctance to be held accountable," Ms in 't Veld pointed to the fact that the Swift agreement was an attempt to legalise something that was illegal in the first place.

The history of the agreement dates back to 2006, when a story published by the New York Times revealed that the US government had been running a covert programme – the Terrorism Finance Tracking Program (TFTP) – set up in the aftermath of the terrorist attacks on Washington and New York, in 2001.

The programme consisted in monitoring financial transactions enabled by the Belgium-based Society for Worldwide Interbank Financial Telecommunication (Swift) – an inter-bank communications company used in over 80 percent of international transactions.

Data continued to flow and the EU subsequently tried to legalise the process. With the entry into force of the Lisbon Treaty, the European Parliament was granted a veto right over such deals, which it used, in February 2010.

Ms in 't Veld has meanwhile filed a series of questions with the European Commission regarding the programme, after it emerged that several requests for information by the German data protection authority and by German MPs were dodged by both Europol and the commission itself.

On of the Dutch MEP's questions asks: "What does the European Commission think of the classification 'top secret' of all documents relating to the Swift agreement?"

Others refer to the amount of data transferred so far, the number of requests made by the US and rejected or accepted by Europol and to the actual activity of the EU supervisor sitting in Washington to oversee the compliance of the agreement.

"There are more agreements coming up which need our consent. Not answering questions and dodging information requests is certainly not fostering mutual trust among EU institutions," said the Dutch politician, who is tasked with formulating the European Parliament's position on another data sharing agreement with the US concerning air passengers' private data.

Noting that the European Parliament only gave its consent "reluctantly" to the deal, Ms in 't Veld argues that if the agreement proves to have too many loopholes in order to escape public scrutiny, this will have an impact on all the other pending agreements.

"MEPs will want to secure every comma and every dot, if they cannot ensure that Europol and the European Commission have the same understanding of transparency and accountability as we do," she said.

An internal document written by the German delegation in Brussels and published by the UK-based civil liberties watchdog, Statewatch, earlier this month warned that Berlin "is deeply concerned" about the commission and Europol "repeatedly sidestepping questions or not answering them at all."

This policy "will raise further questions and add to growing scepticism," the German government warned, in reference to several replies given by the two EU institutions in which they claim not to have the authority to interpret the agreement and give a clear-cut answer.

"The commission, which negotiated on behalf of the European Union, is essential for interpreting the agreement because it is the only one who knows the motivation and attitudes of the contracting partner," Berlin argued, stressing that the current attitude may hamper the establishment of an EU system of analysing banking data on the search for terrorism leads.

German media is also keeping a close watch on how the Swift deal is put in practice. Earlier this month, a query ran by the German daily Financial Times Deutschland and an independent Austrian MEP, Martin Ehrenhauser, revealed that a technical loophole allows the US authorities to access even intra-EU banking transactions, which should in theory be excluded from the agreement.

According to the investigation, Swiftnet Fin, an older system which is to be phased out by 2013 and that still allows for some 200 million transactions a month in the east African region, is not covered by the agreement.

As for Germany's data protection authority, it "will continue to monitor with criticism the implementation of the agreement," Juliane Heinrich, the institution's spokeswoman told this website.

A review of the first six months of the Swift agreement is due to be finalised by the commission next month.

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