First vote in the EP on PNR Agreement with the USA

By EDRi · March 14, 2012

This article is also available in:
Deutsch: [Erste Abstimmung im EU-Parlament über PNR-Abkommen mit den USA |]

The latest chapter in the collection and processing of passenger data to
cover all flights arriving in and departing from the US was opened when, in
2011, the European Commission tabled a renegotiated proposal for an air
passenger data agreement with the US. After the attacks of 9/11, the US
Government required to access travellers’ personal data contained in the
databases of all foreign carriers. In 2006 however, the first agreement was
annulled by the European Court of Justice and since then, negotiations
around each new proposal (in 2007 and 2011) have been characterised by tense
negotiations between and within EU institutions. Sufficient and adequate
protection of personal data of European citizens and the alleged need for
such a wide-scale transfer of personal data have become the core of the
debate once again.

At the beginning of February 2012, Dutch liberal MEP Sophie In’t Veld urged
the European Union to reject the Agreement. Her demand is not altogether
surprising, given that nearly all of the demands of the European Parliament
in its resolutions adopted in 2010 have been ignored in the proposed
Agreement, for instance:

a. The retention period has not been reduced. PNR data will be stored for
15 years (out of which 10 in a “dormant” database) and then will be “fully
anonymised” rather than deleted.

b. The European Parliament has asked that PNR data “shall in no
circumstances be used for data mining or profiling”. However, these uses
have not been excluded in the agreement.

c. The agreement does not provide for sufficient protections and rights
for citizens. According to US organisation Friends of Privacy: “Europeans
cannot, as the agreement suggests, obtain independent and adequate relief
from unlawful actions by the US Executive Branch (USG) by appealing those
decisions under the Administrative Procedures Act (the APA).”

The Article 29 Working group pointed out in its letter to the LIBE committee
dated 6 January 2012 that, in order to make “PNR data of all (…)
passengers – nearly all of them being innocent and unsuspected citizens –
available to foreign law enforcement agencies”, irrefutable proof is
required to show that the agreement is necessary and proportionate. So far
however, the Commission has failed to credibly argue, let alone prove, that
the use of PNR data is necessary and proportionate in order to combat
terrorism effectively.

The Commission has also failed to provide the Parliament with systematic
evidence and the Privacy Impact Assessment that it requested. Despite
Commissioner Malmström’s repeated statements that the Agreement has been
significantly improved, there is no evidence to support this claim.

Another worrying point is the attempt to legitimise current illegal
processing of European data by companies on which US jurisdiction is being
imposed. According to a Department of Homeland Security (DHS) testimony to
Congress, 5 October 2011, an Agreement is crucial “to protect US Industry
partners from unreasonable lawsuits, as well as to reassure our allies, DHS
has entered into these negotiations.”

On 27 March 2012, the Civil Liberties Committee (LIBE) of the European
Parliament is going to vote in favour or against a new text for an Agreement
for the transfer of passenger data (PNR) to the USA. If the European
Parliament manages to remain consistent with its earlier positions and
decides to reject the new text, the Commission would have to renegotiate and
the 2007 PNR agreement would continue to be provisionally in force.

EDRi Comments on the PNR Agreement with the USA (01.2012)

Sophie In’t Veld’s Draft Recommendation (1.02.2012)

Statewatch’s Comparison between the PNR Agreements 2004 – 2007 – 2011

Letter by the Article 29 Data Protection Working Party to the LIBE
Committee (6.01.2012)

Friends of Privacy Opinion (26.12.2011)

Contact your MEP on the PNR vote (only in German)

No PNR mail campaign

(Contribution by Kirsten Fiedler – EDRi)