Agreement on transfer of passenger data 'a sell-out'

2.59.46pm UTC (GMT +0000) Thu 12th Oct 2006

After analysing the full texts, Liberal Democrat European justice spokeswoman Baroness Sarah Ludford MEP has accused EU bodies of accepting a transatlantic package agreement on transfer of personal data of European air passengers which is even weaker in privacy guarantees than the old one.

"Far from being the claimed success, it's a sell-out. It unacceptably weakens European data protection standards and essentially imposes US laws on European citizens in a familiar pattern of extra-territorial jurisdiction as on SWIFT banking data, online gambling and extradition."

"Despite claims of 'legal certainty', the Commission and EU governments are at odds over whether an accompanying American letter which 'interprets' the agreement by weakening safeguards is an intrinsic part of it. The US makes a mockery of its undertakings by asserting the right to move the goalposts at any time regarding who gets access to the data or how it is processed."

"Commissioner Frattini declares that this passenger information cannot reach the CIA. But this appears to be contradicted by the US letter which says data can be passed to 'authorities exercising a counter-terrorism function'. This is not an academic concern, given what we know about extraordinary rendition."

"European citizens' expectations that their hard-fought rights to data protection would not be squandered have been betrayed. They have paid a high price under the threat of disruption of transatlantic flights."

Notes

1. The Council uses careful drafting which appears to mean that the US 'side-letter' is indeed a part of the whole agreement package (emphasis added):

[the agreement takes] 'into account certain legitimate US requests for clarification; to this end certain interpretations of the existing Undertakings were set forth.......When taking note of this Letter of Interpretation, the Presidency and the Commission ......will reaffirm that the commitments of the Department of Homeland Security to continue to implement the Undertakings allows the EU to deem that, for purposes of the implementation of the Agreement in the Member States, it ensures an adequate level of data protection."

2. The formal text of the agreement says that data shall be passed over 'as required by DHS' which will process the data 'in accordance with applicable US law'. Thus if the law changes in the US, including by Presidential decree, the US can change how it processes the data and which agencies (or even third countries) receive it. The US side-letter adds that 'DHS will facilitate the disclosure...of PNR data to US government authorities exercising a counter-terrorism function' if they need it for investigation.

3. European justice Commissioner Franco Frattini undermines his own assertion that the US letter is not part of the agreement by assuring MEPs of a target date of December 2006 for introduction of an airline 'push' system to provide data, a promise contained only in that letter, not in the formal text.