PNR: Bolkestein's diplomacy and anger Belgian DPA

By EDRi · January 28, 2004

MEP Marco Cappato has revealed a letter EU Commissioner Bolkestein sent to Tom Ridge, the U.S. Secretary of Homeland Security. The letter was sent on 18 December, only two days after Bolkestein had given his presentation in which he tried to mislead the European Parliament on the true nature of the agreement on the transfer of Air Passengers personal data to U.S. agencies.

Most interesting is the subtone of the letter, in which Bolkestein behaves like an ally of Ridge against the forces wanting to prevent the transfer: “On my return from Strasbourg (…), where the initial reaction from members of the European Parliament was relatively balanced, I would like to thank you once again for your personal commitment (….) to the conclusion of our discussions. I share entirely your view that we have set a good standard here for EU/U.S. cooperation and I hope we can keep it up.”

Bolkestein makes it quite clear that the Commission does not object against the use of PNR-data collected in the EU in the CAPPS-II system: “This letter reflects my commitment to serious and rapid negotiations between DHS (Department of Homeland Security) and the European Commission with a view to reaching an understanding authorising the use of PNR data emanating from within the EU for the CAPPS II programme.”

If the U.S. administration should stick to its plans to link CAPPS-II up with the even broader US-VISIT system, the data transfer would constitute an even more obvious offence against EU Data Protection law: US-VISIT explicitly grants access to all data to ‘the Intelligence Community’. To conclude, Bolkestein expresses his regret that it is not in the Commission’s power to stop national Data Protection Commissioners from enforcing EU or national DP law: “I nevertheless undertake to keep them informed on our discussions in the interest of avoiding any actions which may impact on our negotiations.”

Both Bolkestein and Ridge must be disappointed by the negative advice from the Belgian Data Protection Authority against the transfer. In response to a complaint from Marco Cappato, on 19 January the Belgian DPA qualified the transfer of data raised at Brussels National Airport to the U.S. as illegal under Belgian law, paving the way for legal action to be taken against the involved airlines.

Letter from Commissioner Bolkestein to Secretary Ridge (18.12.2003)

Statement by MEP Marco Cappato on the letter (27.01.2004)

Belgian Privacy Commission, response to complaint about transfer of personal data to the U.S. by certain air carriers (in French):

EU Data Protection Directive 95/46
(Article 25 defines conditions for the transfer to third countries of personal data raised in the EU)