thoughts and observations of a privacy, security and internet researcher, activist, and policy advisor

Tuesday, June 07, 2011

Battle over Passenger Data is heating up

In late May 2011, the new draft agreements on the transfer and retention of air passenger data between the EU and the United States and between the EU and Australia respectively have leaked to the public. The re-negotiation of the agreements from 2007, which have since then been provisionally applied, had become necessary after the European Parliament refused to vote on them in May 2010.

The new agreements do not substantially improve the situation with regards to the old ones. They both require that data of air passengers is transferred to public authorities (DHS in the US, Customs and Border Protection in Australia) ahead of a flight; they allow for profiling, i.e. the use of data for sorting assengers into risk categories based on pre-defined and secret criteria without an initial suspicion or criminal lead; and they allow for retention of the data up to 5.5 (Australia) and 15 (US) years. There are also provisions for onward transfer of the data to third agencies and countries.

The agreement with the US met heavy criticism both among EU member states as well as among Members of the European Parliament and from civil society, and provoked an emergency reaction from the UK Justice secretary as well as the US ambassador to the EU. At the moment, there are talks with the negotiator (DG Home Affairs of the European Commission) to re-open the text, though improvements have been made very unlikely by a recent resolution of the US Senate that rejects European privacy demands.

The agreement with Australia is less prominent, but still highly relevant. There is a small blocking minority in the Council, consisting of Germany, France, Belgium, Czech Republic, Ireland, Austria and Portugal, that is mainly concerned about the provisions on transfer to third countries, and sometimes about the retention periods (Germany, France). The Commission is not willing to re-negotiate, though. The Council of Justice and Home Affairs Ministers on 9th/10th June might overcome the blocking minority and the parliamentary reservations from some countries, and adopt the agreement. At the moment, a veto in the European Parliament is unlikely. In the worst case, the Australia agreement may be concluded before the summer break and open the floodgates for other such agreements, and for the first time accepting profiling and preventive policing.

Privacy activists from EDRi members, Digitale Gesellschaft and FoeBuD, as well as from EDRi observer AK Vorrat and other groups, met in Brussels from 27th to 30th May to do a legal, technical and political analysis, coordinate their short-term work and plan for long-term collaboration with others. A mailing list will be set up shortly.

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