22nd Jan 2021

MEPs look to new data protection battle with US

  • The US has access to all customer data for Europeans boarding transatlantic flights (Photo: Flickr/Mr. Wright)

After having forced extra privacy provisions into an EU-US deal on bank data snoops, the European Parliament is bracing itself for an even tougher battle on US access to personal information on air passengers.

The EU parliament came to prominence in February when it used its new Lisbon Treaty powers to veto international agreements involving transfers of data by striking down the so-called Swift deal.

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The Swift pact - which allows US agents to sift EU bank data for evidence of terrorist financing - is now expected to pass a second vote on Thursday (8 July) with no problems after the EU commission inserted extra privacy provisions.

But an upcoming vote on the "Passenger Name Record" (PNR) scheme, which obliges every airline flying into or via the US to hand in all personal data on its passengers, is likely to prove tricky.

"The vote on the PNR will be more difficult, because our objections are stronger," Dutch Liberal MEP Sophie in't Veld, the parliament's rapporteur on PNR, told Euobserver after returning from an "exploratory" visit to the US last week.

Similar to the bank data arrangement, PNR was set up in the aftermath of the 2001 terrorist attacks on Washington and New York, initially as a provisional deal which became a fully-fledged agreement. An EU court struck down the pact in 2006 after the European Parliament challenged its legal basis. A new deal was put in place in 2007 for seven years, but after the coming into force of the Lisbon Treaty, the legislature's consent is needed afresh.

Ms in't Veld explained that instead of striking down PNR shortly after the entry into force of Lisbon last December, MEPs have given the EU commission the chance to first draw up a general mandate on PNR agreements and civil liberties safeguards which cane be used to amend the US pact. The commission proposals are due in autumn.

"We agreed to postpone the vote as a courtesy gesture, but that means we need an improved deal. All I hope is they are sensible enough to involve the parliament [in crafting the new mandate]," Ms in't Veld said.

Aware that the implications of a No vote would be greater than in the Swift case, with European carriers losing their licence to fly into the US, Ms in't Veld said she "hope[s] it doesn't come to it."

As it stands, the PNR deal allows US police, FBI and other intelligence gathering agencies to look at the personal data not only in terrorism cases, but also for "serious crimes" - a disputed term, which in the US refers to cross-border crimes punishable by at least three years in prison.

When in one incident a child was taken back to Europe by its non-custodial parent, US authorities tracked the two down via PNR on charges of "child abduction," despite the fact that in the EU this is not considered a "serious crime."

"We have to take a close look at the proportionality of this program. It's tough to asses, we are only given anecdotal cases, but there is a big difference between looking for known suspects and searching for potential criminals," the Dutch MEP said.

Another sticking point is the data retention period of 15 years for all personal profiles, which are set up automatically whenever someone books a transatlantic flight, as well as the difficulty of changing or deleting data, for instance if a person is mistakenly put on a watch list.

According to US officials, around 2,000 suspects are apprehended yearly thanks to the PNR scheme.

"PNR is an important tool. Last year, one third of the indiviuals identified as being involved in a nexus of terrorism came from PNR data," David Heyman, a senior advisor on counter-terrorism policies in the Department of Homeland Security told journalists in Washington during a briefing on 21 June.

He said so far the European Commission has not indicated it wants to renegotiate the agreement, but added that the Obama administration is fully aware of the new powers acquired by the European Parliament.

"We are aware of the post-Lisbon institutional changes. Europe is a complicated place, there are multiple layers of government, but the US is fully engaged with the EU," he said.

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