21st Mar 2018

EU-US counter-terrorism pacts at risk over snooping affair

  • Malmstrom sent a letter to the Americans with a warning the commission could suspend the PNR and TFTP agreements. (Photo: European Commission)

The European Commission has said two major data sharing agreements with the US are at risk due to tensions over US snooping operations in Europe.

Both the EU-US passenger name record (PNR) and the terrorist financial tracking programme (TFTP) agreements are currently up for annual review.

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A team from the European Commission will meet with US officials in Washington on Monday (8 July) for a pre-scheduled evaluation to determine if the Americans are respecting the terms of the agreements.

But the routine event comes in the context of revelations that US intelligence services snoop on EU citizens' Internet data and bug EU embassies, creating a toxic atmosphere.

EUobserver understands that EU home affairs commissioner Cecilia Malmstrom spelled out her concerns in a letter sent on Thursday to Janet Napolitano, the US homeland security chief, and David Cohen, the US treasury's terrorism and financial intelligence director.

According to a source, the letter warns that, given the negative climate, unless the US fully co-operates on PNR and TFTP compliance, there is a risk that European politicians will push to scrap the treaties.

Malmstrom's spokesman, Michele Cercone, underlined the point in a press briefing in Brussels on Friday.

“Should we fail to demonstrate the benefits of the TFTP and of the PNR instruments for our citizens and the fact that they have been implemented in full compliance with the law, their credibility will be seriously affected and in such a case we will be obliged to reconsider if their conditions for implementation are still met,” he said.

The PNR agreement requires airline companies to send to the US Department of Homeland Security data relating to all passengers flying between the EU and the US as of July last year.

The Americans can keep the data on record for up to 15 years.

After the first six months, they must strip away personal information that can identify a passenger. They then keep it for five years, after which they can place it in a "dormant" database for another 10 years.

The agreement was endorsed by the European Parliament in March 2012. But the rapporteur, Dutch liberal Sophie Int’Veld, withdraw her signature from the text because of data protection concerns.

She told EUobserver she is "pleased" about Malmstrom's hard line on the review. "Europe should be a lot of tougher and defend EU citizens rather than put international relations first,” she said.

Meanwhile, the TFTP gives agents from the US treasury department access to data on Europeans' financial transactions in a bid to identify terrorist money.

The data is handed over by EU police agency Europol.

A report by Europol's supervisory board in 2012 said that, despite safeguards on the "relevance" of the data to be handed over, the Americans have carte-blanche to get what they want.

Meanwhile, a separate commission report last year noted that TFTP analysts conducted close to 32,000 data searches in 20 months, a slight decrease on the previous reporting period.

The commission team will in Washington on Monday also discuss how to handle the US snooping affair.

The preliminary negotiations will not go into details of the US snooping programme, but will try to decide which officials are to be involved from both sides in future "working parties" and what they will talk about.

The British and Swedish EU ambassadors in Brussels on Thursday set their ground rules.

They told fellow EU states that commission officials have a legal mandate to discuss data privacy with the US, but they do not have the right, under the EU treaty, to stray into intelligence or national security matters.

"There is some concern that the commission is trying to pad its role," one EU diplomatic contact said.

An EU source noted that a possible compromise will be to split the future EU team in two.

One set of EU officials would handle the data privacy ramifications of the US snooping programme. While a second team, composed of experts on intelligence matters seconded from EU countries' capitals, would tackle the broader intelligence/security implications.

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