Bank data deal under heavy fire from EU Parliamentarians

By EDRi · January 27, 2010

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Deutsch: [Bankdatenabkommen unter schwerem Beschuss der EU-Abgeordneten |]

The debate on the bank data (“SWIFT”) agreement in the European
Parliament’s Committee on Civil Liberties, Justice and Home Affairs
yesterday and today showed a clear conflict between parliamentarians on
the one side and the EU Council as well as the European Commission on
the other side. EDRi asks its readers to call Social Democrat and
Conservative MEPs before 4 February and convince them to be firmly
against the bank data transfer and protect European privacy rights.

The EU Justice and Home Affairs Ministers had signed an agreement with
the US government on the transfer of bank data from the EU to the US for
the Department of Treasury’s “Terrorist Finance Tracking Program” (TFTP)
on 30 November last year. It would legalize the use of bank data,
including inner-European transactions, by US security agencies, which
had been going on since 9/11 2001 and only became public in 2006. The
new agreement had only been only possible because Germany abstained
after a heavy fight between conservative and liberal parties in the
Berlin coalition. Members of the European Parliament furiously
criticized this move, because one day later, on 1st December, the Lisbon
Treaty entered into force and gave the Parliament full veto powers in
the area of justice and home affairs. Only later it turned out that
because some national parliaments had announced reservations to the
signature, the deal was not concluded and now has to be dealt with under
codecision procedures.

The President of the European Parliament in December repeatedly had
asked the Council and Commission to refer the agreement to the EP as
soon as possible, without getting any reply. Only last week, the Spanish
presidency told MEPs that the delay was caused by translation problems
and that the EP would get it on 25 January. When MEPs found out that the
text of the agreement had already been published in the Official
Journal, they immediately suspected a foul play by Council and
Commission. The agreement will enter into force provisionally on 1st
February, but the EP can only vote on it in the next plenary session (8
to 11 February). The Council has turned down a request by the EP to
postpone the provisional application by two weeks.

In today’s (27 January 2010) committee session, Commission representative
Johnathan Faull revealed that there will also be a new, confidential, report
by French anti-terror judge Jean-Louis Bruguière next week, when the
committee will already have its vote on the agreement. MEPs from both
Liberal and Green groups demanded that all such background documents be made
immediately, including an opinion of the Council’s legal service and the
secret annex that lists the financial service providers affected by the
agreement. MEPs from all groups except for the conservatives also criticized
the substance of the agreement, citing numerous articles that are not in
line with EU or Council of Europe data protection regulation or the EU
charter of fundamental rights. The EP’s rapporteur on this dossier, Dutch
liberal Jeanine Hennis-Plasschaert, also rejected the
Council’s and Commission’s repeated claim that without the provisional
application of the agreement, we would have a “security gap”. Austrian
Conservative MEP Ernst Strasser stated that “if there was a security
gap, we would have it now – from 1st January to 31st January,” referring
to the fact that the global bank transaction provider SWIFT has already
changed its architecture on 1st January. SWIFT is now routing
inner-European transactions only within Europe, thereby cutting off
direct access by US agencies. The discussion became fully absurd when
commission representative Faull suggested that we would even get a
“privacy gap” if the agreement is vetoed by the EP. Vice European Data
Protection Supervisor Giovanni Buttarelli quickly debunked such
assertions, citing a new legal analysis done by his staff which also
revealed several privacy and legal protection flaws in the agreement.

The follwing two weeks before the EP plenary vote will now be decisive
not only for privacy protection for EU citizens in the fight against
terror, but also for transatlantic relations in this field and for the
role of the European Parliament with its new powers under the Lisbon
Treaty. Left, Liberal, and Green MEPs seem to be willing to kill the
agreement and protect privacy rights, while conservatives still seem to
be trying to save it. The decisive group will therefore be the Social
Democrats. EDRi asks its readers to call Social Democrat and
Conservative MEPs (not only) in the LIBE committee before 4 February and
convince them to be firmly against the bank data transfer in the
committee vote.

EU Council Decision on the agreement (30.10.2009)

Text of the agreement between the European Union and the United States
of America on the processing and transfer of Financial Messaging Data
from the European Union to the United States for purposes of the
Terrorist Finance Tracking Program (30.10.2009)

European Data Protection Supervisor: Comments on
different international agreements, notably the EU-US and EU-AUS PNR
agreements, the EU-US TFTP agreement, and the need of a comprehensive
approach to international data exchange agreements: (25.01.2010)

European Parliament press release: SWIFT interim agreement: Civil liberties
Committee to vote on 4 February (27.01.2010)

Members of the European Parliament’s Committee on Civil Liberties,
Justice and Home Affairs

Members of the European Parliament by Country

Ralf Bendrath: SWIFT Agreement Not in Line with European Parliament ‘s
Demands (18.11.2009) (updated on 25.01.2010)

EU: Assessment of the Article 29 Working Party and the Working Party on
Police and Justice (22.01.2010)

EDRi-Gram: Bank Data Transfer to US about to be stopped (18.11.2009)

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