Wednesday

13th Dec 2017

Privacy campaigner: EU-US passenger data deal 'meaningless'

  • All persons travelling to the US are considered potential criminals (Photo: afagen)

A secretive agreement allowing Washington access to all personal information of air travellers to the US, seen by EUobserver, is "meaningless" and "deceptive" from a data privacy point of view, say experts.

The agreement, sealed last week between the European Commission and the US government, is now pending approval by member states and the European Parliament.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

It provides a legal basis for what started as an anti-terrorism data sifting programme in the US following the attacks on 11 September 2001: the transfer of data such as private email address, credit card number, travel itinerary, but also "general remarks" made by airline officials on the behaviour of the passenger.

EU commissioner Cecilia Malmstrom on Thursday (17 November) said the agreement "contains robust safeguards for European citizens' privacy," and is legally binding on the US.

But the full text remains secret - despite being of public interest as it deals with mass private data transfers, circumventing EU law on data privacy. MEPs dealing with the dossier have been allowed to look at the agreement only in a sealed room.

US campaigners like Edward Hasbrouck, who has filed several legal complaints in the US against the extensive use and storage of Passenger Name Records (PNR) by authorities, disagrees with Malmstrom's confident assessment of the deal.

"This is theoretically true: It is 'binding', but there is no enforcement mechanism. According to the terms of the agreement, the only remedy for non-compliance is to terminate the agreement for future data transfers," he told this website.

Even in this instance, the US government would still have access to the data, as airlines do not store the PNR information in their own servers, but in US-based "computer reservation systems" to which the Department of homeland security (DHS) has access.

According to the text, "the collection and analysis of PNR is necessary for DHS to carry out its border security mission."

Based on the personal data transferred to the American authorities 92 hours prior to departure, people can be subject to close inspection and interrogation or banned from flying, if they turn out to be on a no-fly list. But such lists are secret and access to them forbidden.

Claiming that personal data collection and analysis is "necessary" for border controls is false, says Hasbrouck. According to the UN Human Rights Committee, measures that hamper freedom of movement have to be proven to be effective and it must be clear that less restrictive alternative would not achieve the same purpose.

"There has been no showing as to why existing legal means - warrants or court orders - would not be sufficient as a means to obtain PNR data in specific investigations," Hasbrouck says.

The wide scope of the potential crimes targeted by the data analysis is also a reason for concern. Apart from suspects of terrorist acts, funding, being a facilitator or "contributing in any other way" to something that may look like a terrorist act, the agreement also applies to "other crimes that are punishable by a sentence of imprisonment of three years or more and that are transnational in nature," the text reads.

This may apply, for instance, to someone suspected of having illegally downloaded American movies or music and distributed them abroad.

Overall, the personal data will be retained for 15 years - five years in an active database and ten in a "dormant" state - where access is more limited and names blackened. "Re-personalisation" can be done, however, "in connection with law enforcement operations and then only in connection with an identifiable case, threat or risk."

The data for cases concerning other crimes than terrorism "may only be re-personalised for a period of up to five years," the agreement says.

Again, Hasbrouck points out that these retention limits "only apply to the DHS copy of the PNR."

The computer reservation systems can keep the original copy forever and there is nothing to stop the US authorities from getting a new copy from the reservation system, something not covered by the PNR agreement.

There are other potential issues too.

Anyone is entitled to access, correct or delete personal data but they are unlikely to be able to get hold of it, as most PNR data is exempt from the Freedom of Information Act.

Unhappy MEPs to approve passenger data deal

The freshly re-negotiated agreement on the transfer of personal data of air passengers flying from Europe to the US still raises privacy concerns, MEPs familiar with the text have said. But a veto by the Parliament is unlikely, however.

Member states to clash with EU parliament on passenger data

The European Parliament is likely to clash with member states over the use of EU air travellers' personal data in the search for suspected terrorists, as the UK is pushing to change a draft bill initially designed for passengers coming from non-EU countries.

Focus

EU to tighten privacy rules on air passenger data

The EU commission wants to strengthen privacy rules for sharing personal data of air travellers to the US, Australia and Canada and limit the use of this data strictly to fighting terrorism and serious organised crime.

Agenda

This WEEK in the European Union

Last week's EU summit deal on creating a fiscal compact is set to be dissected in Brussels and beyond with markets already responding with scepticism. MEPs travel to Strasbourg for an end-of-the-Polish-presidency roundup.

US scores victory on EU air passenger screening

A permanent treaty forcing EU companies to tell US authorities what air passengers email addresses and credit card numbers are or if they ever yelled at a travel agent is one step closer to reality.

Romania wants EU signal on Schengen membership

Bucharest expects other member states to decide on its accession to the passport-free area before it takes the rotating EU presidency on 1 January 2019 - amid criticism of a controversial new justice reform.

Germany says China using LinkedIn to recruit informants

Germany's spy agency says the Chinese state is trying to recruit high-ranking German officials via social media outlets like LinkedIn. It accused Chinese intelligence of setting up fake profiles to lure them into becoming informants.

News in Brief

  1. MEPs vote to allow phosphate additives in kebabs
  2. Babis government sworn in in Czech Republic
  3. Russia looks to crypto-currencies to evade EU sanctions
  4. Juncker embroiled in Luxembourg wire-tapping trial
  5. Kurz close to forming new Austrian right-wing government
  6. Ministers reach deal on fish quotas but overfishing continues
  7. UK parliament to vote on right to veto final Brexit deal
  8. French government rules out Corsican autonomy

Stakeholders' Highlights

  1. ACCACFOs Risk Losing Relevance If They Do Not Embrace Technology
  2. UNICEFMake the Digital World Safer for Children & Increase Access for the Most Disadvantaged
  3. European Jewish CongressWelcomes Recognition of Jerusalem as the Capital of Israel and Calls on EU States to Follow Suit
  4. Mission of China to the EUChina and EU Boost Innovation Cooperation Under Horizon 2020
  5. European Gaming & Betting AssociationJuncker’s "Political" Commission Leaves Gambling Reforms to the Court
  6. AJC Transatlantic InstituteAJC Applauds U.S. Recognition of Jerusalem as Israel’s Capital City
  7. EU2017EEEU Telecom Ministers Reached an Agreement on the 5G Roadmap
  8. European Friends of ArmeniaEU-Armenia Relations in the CEPA Era: What's Next?
  9. Mission of China to the EU16+1 Cooperation Injects New Vigour Into China-EU Ties
  10. EPSUEU Blacklist of Tax Havens Is a Sham
  11. EU2017EERole of Culture in Building Cohesive Societies in Europe
  12. ILGA EuropeCongratulations to Austria - Court Overturns Barriers to Equal Marriage

Latest News

  1. Brits in EU-27 are uncertain, alone and far from protected
  2. 2018 fishing quotas agreed - but Brexit muddies waters
  3. Medical HQ to spearhead EU military push
  4. Facebook to shift ad revenue away from Ireland
  5. EU renews glyphosate approval, pledges transparency
  6. Romania searching for EU respectability
  7. Last chance for Poland to return property to rightful owners
  8. Commission attacks Tusk on 'anti-European' migrant plan

Stakeholders' Highlights

  1. Centre Maurits CoppietersCelebrating Diversity, Citizenship and the European Project With Fundació Josep Irla
  2. European Healthy Lifestyle AllianceUnderstanding the Social Consequences of Obesity
  3. Union for the MediterraneanMediterranean Countries Commit to Strengthening Women's Role in Region
  4. Bio-Based IndustriesRegistration for BBI JU Stakeholder Forum about to close. Last chance to register!
  5. European Heart NetworkThe Time Is Ripe for Simplified Front-Of-Pack Nutrition Labelling
  6. Counter BalanceNew EU External Investment Plan Risks Sidelining Development Objectives
  7. EU2017EEEAS Calls for Eastern Partnership Countries to Enter EU Market Through Estonia
  8. Dialogue PlatformThe Turkey I No Longer Know
  9. World Vision7 Million Children at Risk in the DRC: Donor Meeting to Focus on Saving More Lives
  10. EPSU-Eurelectric-IndustriAllElectricity European Social Partners Stand up for Just Energy Transition
  11. European Friends of ArmeniaSignature of CEPA Marks a Fresh Start for EU-Armenia Relations
  12. Nordic Council of MinistersNordic Energy Ministers Pledge to Work More Closely at Nordic and EU Level