22nd Oct 2016

PNR deal with Canada violates rights, says EU top lawyer

An advocate-general of the European Court of Justice on Thursday (8 September) said the passenger name records (PNR) agreement with Canada "cannot be entered into in its current form."

The provisional agreement signed off in 2014 allows Canadian authorities to use and retain passenger details in their efforts to crackdown on crime and terrorism. They can also pass the collected information onto foreign authorities.

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  • EU parliament has held off adopting the PNR agreement with Canada. (Photo: Air Canada)

The opinion is non-binding but is likely to bear import on the court's final decision expected months later.

The European Commission, for its part, has refused to comment.

"I don't think we are going to comment on that at this stage, we are going to wait until we have the court's judgment," EU spokeswoman Mina Andreeva told reporters in Brussels.

Defenders of the pact say it is needed in the wider war against terrorism. Critics question its merit and say the collection of data like meal preferences violates privacy and data protection.

"The necessity and proportionality of these instruments has never been demonstrated, and yet, they have been in place for years," said Estelle Masse, a senior policy analyst at Access Now, a digital rights group.

US, Australia, and EU PNRs on shaky ground

The advocate's move is likely to create a headache for a host of similar agreements between the EU and the United States and Australia. Another EU-wide specific PNR agreement was also recently adopted and talks are underway for an agreement with Mexico.

Paolo Mengozzi, the advocate general behind the opinion, referred to a case law from last October that had invalidated the so-called Safe Harbour agreement with the United States.

That case is rooted in broader issues of privacy between Facebook's Irish subsidiary and Max Schrems, an Austrian privacy campaigner, and 2013 revelations of US-led mass surveillance.

Mengozzi also referenced the EU data retention law, which the court invalidated in 2014. The court declared its 24 month retention period a "serious interference" of fundamental rights.

PNR retention periods with Canada are five years and even longer in the United States.

US authorities can retain data for up to 15 years. Australians can keep it 5 and a half years and the EU's own internal PNR system allows for five year stretches.

Mengozzi also noted some of the provisions within the agreement, if applied correctly, do adhere to the charter.

However, his criticism is being hailed as a victory for rights defenders who have for years argued against PNR agreements.

“After the 2006 PNR, the Schrems and the data retention rulings, this is the umpteenth demonstration that sloppy law making is counterproductive," Dutch liberal MEP Sophie In’t Veld said in a statement.

In’t Veld, who leads the European Parliament file on the Canada deal, said the implications of opinion will be far-reaching.

"Although the court's ruling is not binding, it may have far-reaching implications for other rules and agreements on the widespread use of personal data," she said.

The Council of the EU, representing member states, signed the deal with Canada in June 2014 and then requested the EU parliament's consent.

MEPs have refused adoption until the Luxembourg-court delivers its final judgment.

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