6th Mar 2021

Court only option against Swift agreement, says MEP

  • Only an EU court could scrap the Swift agreement (Photo: bloomsberries)

The EU commission on Thursday (17 March) downplayed data protection concerns over a deal allowing bulk banking data to be transferred to the US for anti-terrorism investigations, leaving a legal challenge over 'data mining' and privacy breaches as the only option for MEPs willing to continue the fight.

In a "tense" meeting behind closed doors, home affairs commissioner Cecilia Malmstrom fended off criticism from MEPs who the previous day had decried the "betrayal" of EU institutions after they had given their consent to the controversial Swift agreement.

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Malmstrom presented a review of the first six months since the deal came into force, which "only got us more worried," German Green MEP Jan Philipp Albrecht told this website after the meeting.

"Things have become more clear now, they accept big bulk data being sent over to the US and to be searched via algorithms - which basically means data mining. I said this is unconstitutional, according to the European Court of Justice and the German Constitutional Court," he explained.

Noting that most MEPs now realise they should never have agreed to the deal, Albrecht said there was little the parliament could do at this point.

"We can't cancel the agreement, there is a sunset clause, but that's in five years. The only thing I see possible is to go to court. We are working it out with lawyers and campaigners to see how this can be done," he added.

The Swift affair, which started as a covert programme following the 2001 terrorist attacks on the US, exploded in 2006, when a story in the New York Times revealed that the Americans were secretly spying on European data using a mirror database of the banking communication company, Swift, located on US soil.

Some data protection provisions were put in place. The EU appointed a French anti-terrorism judge to see how the Americans were keeping up with them, but MEPs and some governments, notably the German one, remained unconvinced.

Once the Lisbon Treaty granted the European Parliament extra powers, the Swift agreement became a 'cause celebre', as MEPs struck it down in February 2010. They did approve an amended version in July, including with the provision of having Europol authorise data requests and a special EU person to oversee how the data is being searched.

Taking note of the concerns expressed by Europol's supervisory body, which cited "too broad requests" for the agency to really be able to assess how appropriate and necessary they were, the commission's review only issues 'recommendations' and generally approves how the US and EU bodies implement the agreement - called the Terrorism Finance and Tracking Program (TFTP) after Swift complained about the negative connotations of having its brand used in this context.

"It is recommended that more feedback is collected and analysed by EU and US authorities in order to provide more verifiable insights into the actual added value of the TFTP through eliciting feed-back from the users of TFTP derived information," the document reads.

During their review, EU experts were informed that "in many cases the value of the TFTP is not recognised as such even by the recipients of TFTP derived information, either in the US or abroad."

"One concrete example was discussed by the review team where a prosecutor in one of the member states had questioned the added value of TFTP derived information, simply because he was not aware that the information provided and used had been derived from the programme," the review reads.

The US side welcomed the commission's report. "We agree with the report's finding that the operation and implementation of the programme is consistent with the Treasury's commitment to enforcing the unprecedented data protection safeguards," David S. Cohen, the official responsible for TFTP within the US department of treasury said in a statement.

"We will carefully consider the EU delegation's recommendations as we move forward in implementing this valuable programme," he added.

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