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EU-US passenger-data deal 'dodges real issue'

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Published 06 October 2006 - Updated 08 June 2007
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air safety Data protection passenger rights PNR Privacy trans-Atlantic aviation
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The interim agreement, which will be valid for less than a year, ends a week of legal limbo for airlines but remains unsatisfactory to MEPs concerned about privacy protection.

Justice and Home Affairs Commissioner Franco Frattini explained that the content of the interim agreement will not differ from the 2004 agreement but that new principles have been integrated into the text in order to satisfy European legal requirements: 

  • Availability of information: 

Whereas the 2004 agreement was based on a “pull system” where all legitimate US authorities were allowed to directly extract data from airlines’ databases, the system will now be based on a “push system”, in which US authorities can only request information and airlines have to pass it on. This means that the US Customs and Border Protection no longer has direct access to passenger data – one of the main requests of the European Parliament, according to the commissioner.  

  • Comparable standards of data protection: 

The US had insisted that the Department of Homeland Security’s Customs and Border Protection agency be allowed to share passenger-data freely with other counter-terrorist agencies, but the EU was concerned that private information would not be sufficiently protected as it would become accessible to personnel in a range of agencies.  

Under the new agreement, the EU has agreed to allow passenger information to be passed on to other agencies, but without direct electronic access to data. This, claims Commissioner Frattini, will allow the EU to ensure that data is only disclosed to other agencies provided that they have comparable levels of data protection as in the EU. 

 

The interim deal will enter into force as soon as it is approved by the Council and will be valid until 31 July 2007. Until then, negotiations on a more permanent agreement will be pursued. 

Positions: 

Finnish Justice Minister Leena Luhtanen said: “The most important outcome of the negotiations is that we can now avoid a situation where we have no agreement at all,” as this would have left EU citizens completely unprotected. 

Speaking to EurActiv, Françoise Humbert, spokeswoman for the Association of European Airlines, said that, despite the European Commission’s assurances, the past week had been “an uncomfortable period for European airlines” and that they were now reassured by what appeared to be a “reasonable deal”. 

Although Dutch Liberal Sophia in 't Veld (ALDE), author of a draft recommendation to the Council on a negotiation strategy for a passenger data agreement with the US, was not happy about the agreement, she conceded that it was better than nothing: "No agreement would have meant total chaos; no protection for passengers and legal uncertainty for airlines." She told EurActiv:"I hope that the US respects the agreement, because so far they have a patchy record in implementing the so-called undertakings of the agreement…The trouble has been all along, in the case of errors or abuse or mistakes, that there’s hardly any means of redress for EU citizens, because they are not covered by US data-protection law." This she says, is not likely to change under the new agreement. 

Green MEP and member of the EP Civil Liberties committee Cem Özdemir accused the EU of caving to US pressure at the expense of EU citizens' civil liberties: "The interim agreement allows the continued plundering of EU passengers' personal information by the US, despite the inferior data protection rights afforded by the US system," he said.

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Background: 

An interim agreement allowing European airlines to transfer passenger-information including names, addresses, phone numbers, itineraries and credit card numbers to US Customs and Border Protection, was reached late on 5 October 2006, said Finnish Justice Minister Leena Luhtanen. 

The agreement came one week after negotiators missed a deadline set by the European Court of Justice to replace a 2004 anti-terrorism accord that had been judged illegal in May 2006 because it failed to ensure adequate protection of data and was not founded on “an appropriate legal basis”. 

The week-long deadlock had put airlines in a difficult situation where they had to choose whether to break EU or US rules. With no agreement, airlines that continued to transfer data to the US faced the threat of lawsuits in Europe for breaching EU data-privacy rules, and those that refused to pass on information risked heavy fines or being denied landing rights in the US. 

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