EU-PNR: JHA
Council to agree the surveillance of airline passengers
– "This
is a classic case of sacrificing democratic standards in the
name of the "war on terrorism" which is meant to be
defending democracy"
– data can be kept indefinitely by law enforcement agencies
– dubious legal basis: European Commission wanted the Council
to delay decision so as not to deal "piecemeal with law
enforcement issues"
The Justice
and Home Affairs Council (JHA) meeting in Luxembourg on 29-30
April is to adopt a Spanish proposal to introduce the compulsory
collection of all passenger name data (PNR) from airlines enetering
the EU. Although the measure is not listed in the Background
paper issued by the Council: see: JHA Background (pdf) it has – under
the terms of the Amsterdam Treaty be adopted by 1 May as it is
a member state initiative or it will fall.
In Statewatch’s previous coverage (see below) we questioned the legal basis of this proposal: "The measure is proposed under Article 61.2.a which covers carrying out checks at external borders which is the responsibility of border and immigration officials. To give access to all law enforcement agencies to the data is dubious." This view is confirmed by the "Declaration by the European Commission" in document 8058/04 (see below) where it says that the obligation on carriers to supply personal data:
"must
be interpreted in the light of its stated purpose, namely "to
combat illegal immigration effectively and to improve border
control"
The Commission are intending to bring a comprehensive proposal
later this year on data protection and law enforcement agencies,
it therefore:
"would have preferred to await the measure before dealing piecemeal with law enforcement issues"
Tony Bunyan,
Statewatch editor, comments:
"It is quite extraordinary that the EU are to put place
all airline passengers under surveillance before the measure
is even in force in the USA – where there are substantial privacy
questions to be answered before the Congress and Senate can proceed
in their considerations.
The European Parliament has rejected the proposal and national parliaments were given no time to scrutinise the radically changed proposal.
To rush through such a far-reaching measure – which will affect the privacy and liberties of all – without proper parliamentary scrutiny and amendment is an abuse of the process and brings the legitimacy of EU decision-making into disrepute. This is a classic case of sacrificing democratic standards in the name of the "war on terrorism" which is meant to be defending democracy"
Documents
1. Council Directive on the obligation of carriers to communicate
passenger data: 8058/04 (pdf)
2. Council Directive: Common Guidelines: 8842/04 (26.4.04) (pdf)
Previous Statewatch
story
On 5 April the Council
of the European Union (the 15 EU governments) requested the European
Parliament to give its Opinion on the EU-PNR scheme by 22 April
and added that: "if it is unable to give its Opinion
by that date, the Council reserves the right to act without the
Parliament’s Opinion". The parliament’s Committee on
Citizens’ Right and Freedoms did agree a Report on 5 April which
unanimously rejected the proposal and at the plenary session
of the European Parliament on 20 April MEPs voted by 287 votes
to 225 votes (with 11 abstentions) to call for the withdrawal
of the proposal. The technical decision was to refer the issue
back to the Committee on Citizens Freedoms and Rights – thus
not providing a formal response to the Council. However, the
Council routinely ignores the Opinion of the European Parliament.
Two national parliaments have maintained scrutiny reservations
and these have not yet been lifted (UK and Netherlands). It is
not known whether the substantially revised version of the Directive
(see below) has been referred back to the other 13 national parliaments
for their views.
The proposal has gone through major changes since it was first
put forward in 2003. Its scope was first defined as covering
all passengers, then it was changed to third country national,
and then it was changed back to all passengers. Major changes
to the draft proposal were agreed at the last JHA Council on
30 March. Under the Article on data protection the obligation
to destroy records after 24 hours was changed to allow for the
indefinite retention of data for use by law enforcement agencies.
Access to the data, which had been limited to border control
and immigration officials, has been extended to all law enforcement
agencies. See: Report
and draft Directive
The late changes also raise a legal problem. The measure is proposed under Article 61.2.a which covers carrying out checks at external borders which is the responsibility of border and immigration officials. To give access to all law enforcement agencies to the data is dubious.
In the USA, where similar proposals are being considered but a long way from being agreed, there are full Senate and Congress procedures and a major report from the US General Accounting Office has concluded that seven out of eight criteria (concerning privacy and the protection of data) have not been met.
Background
3. Report
and draft Directive
4. Statewatch: Observatory
on EU-PNR
5. USA: GAO
report on CAPPS II
6. ACLU challenge "watch-lists": ACLU
press release
(link) The
ACLU case as filed
(link)
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