ENDitorial: PNR – political finger-pointing, no viable legislation

By EDRi · March 9, 2016

The EU Passenger Name Record Directive (or ‘PNR Directive’) would require the storage of travel data for airline passengers, ostensibly for law enforcement purposes. The specialist European Parliament committee responsible for the proposal rejected it in 2013 but adopted the proposal in 2015, following the terrorist attacks. The European Parliament recently decided not to schedule its final vote on the proposal in February, and the proposal will be considered this summer instead. Although this might appear to be relatively minor news, it has been used to generate a rather petty squabble in certain corners of the Parliament.

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The EPP (the EU’s Christian-Democrat group) reacted to the delay with a press release claiming that the Directive had ‘fallen victim to the power games of Socialist and other Left-wing leaders’. A broadly identical press release was also published by the centre-right ECR Group. The tone is admittedly less inflammatory than directly after the Paris attacks, when the EU discourse hit a new low with the press release entitled ‘terrorists would gleefully vote Left‘, accompanied by a picture of an apparently lifeless bloody hand surrounded by bullets. Nevertheless, the new press release does accuse the leaders of the Socialists and Democrats (Gianni Pitella) and the Alliance of Liberals and Democrats (Guy Verhofstadt) of ‘taking EU citizens and their security hostage by playing political games’. Again, the blame for (the threat of) terrorism is directed towards any political group which is not in direct and immediate agreement with current legislative proposals. Even the Liberal ALDE group is being lumped in with ‘the Left’ in this case. Worryingly, any delay to the current agenda – let alone scrutiny or opposition – is being framed as indirect assistance of terrorists, a rhetoric reminiscent of George W. Bush’s; ‘Either you are with us, or you’re against us’.

In order to support their claim that a delayed vote on PNR amounts to ‘taking EU citizens hostage’, the EPP describes the Directive as ‘the main EU tool against terrorism’. It will be a relief to hear that a tool whose effectiveness has never been demonstrated is certainly not “the main EU tool against terrorism”. This is an overstatement; the EU does not rely mainly or even significantly on use data about people’s meal preferences or other data that is only stored in PNR records as their main tool to fight international terror plots. The PNR agreement is actually is an ancillary method of data collection without evidential basis; there is no empirical evidence to confirm whether it actually aids law enforcement in preventing terrorism. Furthermore, its great impact on privacy and data protection rights makes it likely that the current proposal risks being overturned by the Court of Justice of the European Union (which is currently reviewing the legality of the EU’s PNR arrangement with Canada). The Court has already said that mass, untargeted data collection was illegal in the data retention Directive. Moreover, implementing the PNR Directive will require major investments (the original European Commission impact assessment put the cost at hundreds of millions of Euro) which might otherwise be directed at established, empirically grounded methods of counter-terrorism. In other words, far from being a ‘main instrument’, the PNR Directive is a measure of questionable legality and questionable efficacy and apparently very bad value for money.

Another strong argument for delaying the vote on PNR is the time frame for the forthcoming General Data Protection Regulation. The Parliament agreed in early 2015 to treat the two proposals in parallel.

The EPP’s great urgency to vote on the PNR Directive, and its outrage at others who refuse to keep up the same rapid pace, also appear to contradict its own contributions to the text. After all, it was the EPP who decided to cast the measure as a Directive rather than a Regulation, which means that it will be subject to a two-year implementation period rather than being implemented almost immediately. Furthermore, the proposal includes an additional transitional period for the development of technical infrastructures, such that collection from all flights can take place up to four years after the Directive’s entry into force. The PNR Directive is by no means a direct or immediate response to counter-terrorism threats in the present, contrary to some of the political rhetoric.

More shocking still, while these data are claimed to be Europe’s “main” tool in fighting terrorism, there is no obligation in the Directive for EU Member States to share the data with each other. National sovereignty (in relation to international air travel data!) is, apparently, more important than the claimed value of PNR for protecting our security.

Instead of rushing through an expensive proposal of questionable legality and without proven benefits, the European Parliament would be wise to focus on creating a future-proof and effective measure which recognises at least basic principles of European law on fundamental rights. However, the PNR Directive may need a lot of work in order to withstand the Court’s scrutiny – as EDRi has argued before. In that light, delaying the vote should not be seen as ‘playing political games’, but rather as creating a last chance to prepare viable, effective legislation. It can also be seen as a sign that, at least in some groups, cooler heads may be beginning to prevail since the recent spate of poorly-reasoned, short-sighted proposals. What the Parliament currently needs is a level-headed, fact-based discussion on the merits of PNR and its fundamental rights implications. It will certainly not benefit from finger-pointing, polarised rhetoric and hasty, evidence-free politics.

European Parliament resolutions on anti-terrorism and on security and on preventing radicalisation (11.02.2015)

EDRi, EU-Canada agreement on PNR referred to the CJEU: What’s next? (03.12.2015)

EPP, Press Release: We denounce the Left blocking main EU tool against terrorism’ (07.03.2015)

ECR , Press Release: Leftish group leaders refuse to vote on EU Passenger Name Records (03.03.2015)

EPP, Press Release: ‘Paris attacks: terrorists would gleefully vote Left’ (19.07.2015)

EDRi, FAQ on PNR (09.12.2015)

(Contribution by Paddy Leersen, intern at EDRi)