Blogs | On the ground | Privacy and data protection | Data protection standards | Surveillance and data retention

Passenger surveillance brought before courts in Germany and Austria

By Contribution by EDRi member Gesellschaft für Freiheitsrechte, Germany (guest author) · May 22, 2019

EDRi members Gesellschaft für Freiheitsrechte (GFF, Society for Civil Rights) and have taken legal action against the mass retention and processing of Passenger Name Records (PNR) before German and Austrian courts and authorities. The European PNR Directive (Directive 2016/681) requires airlines to automatically transfer their passengers’ data to state authorities. There, the data are stored and automatically compared with pre-determined “criteria” that describe, for example, the flight behavior of known criminals. The data will also be distributed to other authorities and even non-EU member countries.

The EU Member States have been, since May 2018, obliged by the European PNR Directive to have adopted legislation for the retention of passenger data from airlines. For each passenger who takes a flight, a record is created. It contains at least 19 data items, including data such as the date of birth, details of accompanying persons, payment information, and the IP address used for online check-in. Together with information on the flight time and duration, booking class and baggage details, PNR data provides a detailed picture of the trip and the passenger.

PNR data is stored centrally at the respective Passenger Information Unit (PIU). These PIUs are usually located at national police authorities. The data can then be accessed by numerous other authorities and even transmitted to other countries. In addition, an automated comparison of the data records with pre-determined “criteria” is conducted.

This is a way of identifying new suspects in the mass of previously unsuspicious passengers – and a new level of dragnet action by collecting data from all citizens to “catch a few fish”. Thus, each individual, whether previously suspected of a crime or not, can thus be subjected to stigmatising investigations, just for coincidentally having similar flight patterns to past offenders.

GFF and argue that the PNR Directive in its current form violates the Charter of Fundamental Rights of the European Union, in particular the right to respect for private and family life (Article 7), as well as the right to the protection of personal data (Article 8). The Court of Justice of the European Union (CJEU) already took a similar view in its 2017 Opinion on the draft PNR agreement between the EU and Canada.

Since it isn’t possible to appeal the case against the PNR Directive directly before the CJEU, GFF and have brought legal actions before courts and authorities, civil and administrative courts, as well as the data protection authorities (DPAs) in Germany and Austria. The complaints lodged argue that the storage and processing of data by the police authorities violates the Charter of Fundamental Rights. Due to the case’s evident implications of EU law and the CJEU’s aforementioned opinion, it is expected that national courts will eventually refer the question to the CJEU.

The basic funding for the project is provided by the Digital Freedom Fund.

Gesellschaft für Freiheitsrechte (GFF, Society for Civil Rights)

No PNR campaign

Directive 2016/681 (PNR Directive)

CJEU Opinion on the Draft PNR agreement between Canada and the European Union

(Contribution by EDRi member Gesellschaft für Freiheitsrechte, Germany)