9/11-Series - Episode 2: "Air Passenger Data: Should Europe follow a bad example? "
Bonn/ Berlin, 12 August 2011, The Federal Commissioner of Data Protection - Peter Schaar. The blog.
In the forum "Ten years after 9 / 11" Peter Schaar continues the series of thematic contributions with his new blog "air passenger data: Shall Europe follow a bad example?" This time it is about the EU agreement with the United States to transfer passenger data and the planned follow-up agreement. Peter Schaar looks also critically on the proposal for an EU system for a transfer in advance of air passenger data and on the initiative of some EU Member States to include intra-European flights as well:
The attacks of 11 September 2001 were perpetrated with airplanes, and the terrorists travelled by plane to the United States. Although it is therefore understandable that the U.S. authorities attach special significance to air traffic control, I regard the general transfer - without any suspicion and reason - of passenger data (Passenger Name Records - PNR) stored in reservation systems and their long-term storage in U.S. databases as inappropriate.
Already in 2003 the U.S. authorities asked airlines to transfer comprehensive data sets in relation to transatlantic flights. Otherwise, the airlines would have had to expect sanctions even including the withdrawal of landing rights. Although the transfer of data without any reason of unsuspicious travellers to the United States violated European data protection law, the majority of airlines delivered these data, albeit through gritted teeth. The data protection authorities in the EU Member States found it difficult to proceed against the airlines given the economic and political consequences that would have threatened the airlines in case of refusing the transfer.
As a consequence the European Commission negotiated an agreement with the United States that should legalize the practice and simultaneously determine the framework for the use of data by the U.S. authorities.
Nevertheless, the data transfer is a serious problem because the PNR data record contains not only information which the U.S. authorities collect from passengers in any case upon arrival, but also payment details and all available contact information, including also telephone numbers, email and destination addresses in the U.S. Finally, the PNR record also contains sensitive data, such as special dietary requirements (e.g. kosher food), and references to disabilities (e.g. wheelchair use) that, according to European data protection law, require special protection.
After the European Court of Justice annulled the agreement in 2006 for formal reasons, the EU Council and the Commission negotiated a temporary agreement valid until 2014, which, with regard to data protection, even lagged behind the original agreement. Thus, in the new agreement, there was no mandatory time limit on data storage. It was also problematic that the U.S. Customs and Border Protection was allowed to transmit data to an even greater extent to other agencies. Finally, it remained uncertain whether a joint verification of compliance with the obligations at U.S. authorities would still be possible. To the U.S. government this obviously means a barely tolerable adverse effect on their sovereignty because with regard to the obligations, not only U.S. agencies, but also representatives from data protection authorities of the EU Member States were involved.
In addition, the U.S. authorities have up to now refused to implement the shift from a "pull" - to a "push" procedure which is provided for in the agreement. While the currently practiced "pull" procedure allows in the end the U.S. authorities to decide which data they retrieve from flight booking systems at which point of time, the “push” procedure would make the control of the data subject to the transferring body, that means the airlines and their service providers.
Nevertheless, the EU Commission seems to be determined despite the ongoing criticism by the European Parliament to conclude a follow-up agreement with the U.S. At present, it remains to be seen what such an agreement will look like, in particular as the U.S. Senate stated in a resolution in May 2011
"That the Senate-
(1) acknowledges the grave threat posed by terrorists and other dangerous criminals who seek to exploit international aviation to do harm to our countries;
(2) urges the Department of Homeland Security to reject any Efforts by the European Union to modify existing PNR data sharing mechanisms in a way that would degrade the usefulness of the PNR data for identifying dangerous terrorists and other criminals;
(3) urges the Department of Homeland Security to not enter into any agreement that would impose European oversight structures on the United States, and
(4) opposes any effort by the European Union to interfere with counterterrorism cooperation and information sharing between the Department of Homeland Security and non-European countries. "
Meanwhile, the European Union has concluded PNR agreements with Canada and Australia, which are oriented more or less towards the agreement with the U.S. and which are currently under negotiation again. Other states are already queuing up.
Finally, in February 2011, the EU Commission presented a current proposal for an EU system for pre-transfer of air passenger data after a first draft had been evaluated very critically in the European Parliament. However, also under the new proposal, it is intended to maintain the storage of passenger data for many years and without any cause. Therefore, the Conference of the Data Protection Commissioners of the Federation and the Länder assessed this proposal critically:
"Also the new draft does not provide concrete evidence that the automated processing and analysis of air passenger data without any cause is appropriate and necessary in order to support this objective. Such a combination of retention and screening of passenger data is neither compatible with the EU Charter of Fundamental Rights nor with the constitutionally guaranteed right to informational self-determination. This is particularly true with regard to the jurisdiction of the Federal Constitutional Court, which in its ruling of 2 March 2010 (1 BvR 256/08) on the retention of telecommunications data called to mind the following fact: It is a part of the constitutional identity of the Federal Republic of Germany that it is not allowed to completely capture and register the citizens’ exercise of freedom. The Federal Republic of Germany has to stand up for this issue also at the European and at the international level”.
Meanwhile, the British government has- supported by other EU Member States - proposed to use the EU system not only for flights over the EU's external borders, but to include intra-European flights as well. From another side it was required to completely register also travellers in other means of transportation (especially ships and trains).
I would like to emphasise once again: PNR storage is not about the identification of suspects at border inspection posts, but without any initial suspicion the data of all travellers are included. The data shall be screened in order to detect “risk travellers”. Thus, this is another case of data retention without any cause or suspicion whose benefit has not been proven and whose impacts on fundamental rights would be enormous. This is the central problem relating to data protection law.
The collection of passenger data follows a pattern that is also observed as with other anti-terrorism measures: The thrust of the U.S. government is followed by Europe arguing at first that there was no other choice. Then, respective regulations are agreed with other states and finally, a similar system is proposed also for Europe. And as travellers could use other means of transportation, it is demanded to collect their data as well.
This can be called “salami tactics”. This reminds me rather of an oil spill of surveillance which, - once in the water – keeps on spreading. It is time for effective oil barriers!