EU and US still haggling over passenger data sharing

European and U.S. security officials were locked in talks in Brussels Monday to replace a passenger data sharing agreement that was outlawed by a European court in May.

The screening of airline passengers entering the U.S. became standard security procedure after the terrorist attacks on the U.S. five years ago. An agreement was struck with the European Union in 2003 permitting airlines carrying passengers to the U.S. to pass over 34 pieces of European citizens’ private data to U.S. immigration officials without breaching strict European data protection laws.

With that agreement due to expire at the end of this month, after being thrown out on a legal technicality by the European Court of Justice, security officials are trying to agree on an interim accord to take over from Oct. 1. Senior U.S. security officials have demanded an interim accord more far-reaching than the existing one, while the European Parliament wants to limit its scope.

Without a replacement agreement, airlines face a dilemma: if they don’t hand over the passenger name records (PNRs), U.S. authorities may impose hefty fines or withdraw their landing rights, while if they do hand over the data, passengers may sue them for breaching their right to privacy under European laws.

The Parliament recommended last Thursday that E.U. governments protect European citizens’ civil liberties by ensuring that any fresh deal with the U.S. incorporates new privacy safeguards to prevent the profiling of passengers.

Current rules exclude the Parliament from negotiations. Last week it demanded that the legal basis for a Trans-Atlantic data sharing agreement be changed to allow the Parliament joint responsibility for negotiating a long-term replacement accord.

The European Commission, the E.U.’s executive body leading the negotiations on the European side, supports changing the legal basis for a new long term accord — once the interim agreement is in place.

Justice and security commissioner Franco Frattini last week said the issue “underlines the need for a single legal basis for justice, liberty and security issues.” But he stressed that reaching an interim accord is paramount. “The most important need is to guarantee the continuity of application of the … agreement, and legal certainty,” he said.

He wants the interim accord to be the same as the one it is replacing. “I ask the U.S. to agree on the same substance,” he told journalists on his way into a meeting with U.S. officials last Thursday.

However, it could also incorporate “rules and procedures which effectively restrict the use of PNR data by the U.S. authorities,” he told the Parliament last week.

Any attempt to limit the scope of the current accord will be fiercely resisted by U.S. officials. In an article published in The Washington Post last Tuesday, U.S. Homeland Security chief Michael Chertoff asked for the lifting of restrictions on how data can be shared with other agencies.

The existing accord forbids U.S. immigration officials from sharing the 34 pieces of data with any other government agency.

“European privacy concerns have limited the ability of counterterrorism officials to gain broad access to data of this sort,” Chertoff said.

Frattini wrote to Chertoff Monday promising continued commitment to cooperating in the fight against terrorism. The E.U., he said, “is better prepared to respond than we were five years ago.” However, the alleged terrorist plot to blow up trans-Atlantic flights that came to light in the U.K. in August shows that more cooperation is needed, he said.

In addition to striking a new passenger data agreement with the U.S., Frattini told Chertoff that new priorities include monitoring the use of the Internet by terrorists.

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