Bank Data Transfer to US about to be stopped

By EDRi · November 18, 2009

This article is also available in:
Deutsch: [Bankdatentransfer an die USA kurz vor dem Abbruch | http://www.unwatched.org/node/1588]

The Swedish EU presidency and the United States government have
finalized a draft agreement on bank data transfer for anti-terrorism
purposes in mid-November. While the negotiations over the so-called
“SWIFT agreement” were held exclusively behind closed doors, the draft
has been leaked to the press and was published by the German blog
netzpolitik.org (run by German EDRi member Netzwerk Neue Medien) on 11
November and later also by Wikileaks. It stirred a heavy debate in
German-speaking media and made front-page news. According to press
reports, the US government sees no room for substantial changes in the
draft.

While the US Treasury used to have accress to international bank data
held by the Society for Worldwide Financial Transactions (SWIFT) at its
server in Virginia, the new agreement was deemed necessary because SWIFT
will re-structure its network and process inner-European transfers on
its servers only in the Netherlands and Switzerland. The broad use of
bank data searches for anti-terrorism purposes has been heavily
criticized by data protection commissioners, the European Parliament and
privacy advocacy groups. The draft agreement does not meet even the weak
conditions set by the European Parliament in its resolution from
September 2009. It still allows for transfers of data to third
countries, does not offer judicial remedies for non-US-citizens, and
does not require a judge approval before data transfer takes place.
Members of Parliament were fully excluded from the negotiations and had
a hard time even getting access to the relevant documents.

A number of governments have also been publicly opposing this agreement
so far and threatening to postpone any conclusion until after 1st
December. On this date, the Lisbon Treaty enters into force and gives
full co-decision powers in the area of justice and home affairs to the
European Parliament – which would effectively kill the current draft
agreement. Among the strongest opponents have reportedly been the German
and Austrian governments, but also France and the Netherlands are not
convinced yet.

Privacy activists are encouraged to call the governments and EU
embassies of these countries and tell them to stick to European
principles of data protection and the rule of law and keep their
opposition to the SWIFT agreement. Otherwise, the EU Council of Justice
and Home Affairs Ministers may seal a last-minute deal at its meeting on
30 November.

Council of the European Union, Presidency: Draft Swift Agreement
(10.11.2009)
http://www.netzpolitik.org/wp-upload/SWIFT-Abkommen-2009-11-10.pdf

Spiegel Online EU-Minister sollen US-Schn├╝ffelbefehl folgen (only in German,
11.11.2009)
http://www.spiegel.de/netzwelt/netzpolitik/0,1518,660597,00.html

Ralf Bendrath: SWIFT Agreement Not in Line with European Parliament ‘s
Demands (18.11.2009)
http://bendrath.blogspot.com/2009/11/swift-agreement-not-in-line-with.html

EDRi-gram: MEPs ask for a new agreement on SWIFT bank data transfers to USA
(23.09.2009)
http://www.edri.org/edri-gram/number7.18/swift-european-parliament-resolution

(Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien)