Europarl committee recommends rejection of travel data "deal" with the USA

At its meeting Thursday, 18 March 2004, the European Parliament’s Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs (LIBE Committee) voted 25 to 9, with 3 abstentions, to recommend adoption of a resolution to “Call… upon the [European] Commission to withdraw the draft decision” on the adequacy of protection provided for personal data contained in airline reservation Passenger Name Records (PNRs) transferred to the USA from the European Union.

In the meantime, the resolution calls on national data privacy protection authorities to enforce national laws violated by the ongoing PNR transfers to the USA, and reserves the right of Parliament to appeal to the European Court of Justice should the Commission continue without taking account of Parliament’s demands.

The proposed resolution will next go before the Europarl plenary session on Thursday, 25 March 2004, where it seems virtually assured of passage.

A wide range of other proposals for the EU to follow the USA lead in selling out civil liberties to “Homeland Security” have been made in the EU in the wake of the bombings in Madrid. The vote against the proposed “deal” with the USA on airline reservation data, in the immediate aftermath of the bombing, is an encouraging sign that EU legislators have learned from the second thoughts voiced by many in Congress about their votes after 11 Spetember 2001 for repressive laws like the “Patriot Act”. If this vote is any indication, the Europarl is less likely to be stampeded into forgetting its principles of freedom.

I’m no expert on European Parliamentary procedure, and some reports on the LIBE Committee vote, such as those from the BBC and Agence France-Press , differ on whether even a plenary Europarl vote will be binding on the European Commission with respect to the current PNR transfers under the Advanced Passenger Information System (APIS). But if the Europarl is unwilling to approve the the APIS data transfers of current PNRs, it is even less likely to approve the separate deal that would be required for collection and use of additional data, not in current PNRs, for CAPPS-II.

But the USA Undersecratary of Homeland Security for Border and Transportation Security, Mr. Asa Hutchinson, promised explicitly in an interview 13 February 2004, which was published by the DHS itself, that the USA will not prceed with CAPPS-II testing without Europarl approval:

Question: Mr. under Secretary, Robert Block from the Wall Street Journal, I have a letter here from Fritz Bolkestein to the Secretary, to Secretary Ridge, in which it says that Europe has not agreed to submit its data for CAPPS II testing. Then it also reminds you that because there is no situation that use of this could leave airlines open to law suits and the same problems that are here, if its used. Also, just a few days ago another report came out from the European Union, which also recommends that in no way that PNR Data should be used for CAPPS II testing, at all, especially given that the GAO Report was not out yet. So I am confused where the agreement exists to test and have the European data used for testing.

Undersecretary Hutchinson: First of all any agreement that is reached has to be approved by the European Parliament and so that is really the status of it and I think that reflects Commissioner Bolkestein’s language that there has not been final approval for that purpose because it has not been finalized in final agreement form and it has not been approved by European Parliament. What I have referenced is that we have had negotiations that have been on going for months and that we have reached agreement, oral understanding, this has been communicated by Commissioner Bolkestein as well for the submission of this agreement to the European Parliament and part of that agreement that has been breached with Commissioner Bolkestein, in these negotiations, is that the PNR Data would be able to be used for testing purposes of CAPPS II with the understanding that the system would not be used for fully implementing CAPPS II system until the Congressional review is completed and the European Commission has an opportunity to review the results of the testing. So that’s where we stand with them, now, underlining all of that is our independent decision that we’re not going to try to move forward with the testing of this system with European data because of the state of the plague [transcrition error — probably should be “debate”]there.

As Hutchinson also admitted in the same interview, it’s impossible to separate data from the EU from data collected in the USA — the place of data collection is nowhere coded in any PNR (although much other intimate information about travellers, travel industry workers, and other people is).

The only choices that will leave the DHS are to:

1. Suspend or abandon plans to resume CAPPS-II testing;
2. Break its public promise, and proceed with CAPPS-II testing without Europarl approval, precipitating a diplomatic crisis, enforcement action against airlines and reservation systems by EU authorities, and the possible interruption of USA-EU flights; or
3. Postpone any resumption of CAPPS-II testing until Congress has enacted a privacy law providing “adequate” protection, according to EU and international norms, for travel reservation data in the USA, in both corporate and government hands..

Only the third of these options will allow CAPPS-II testing to reume without breaking diplomatic assurances given to friendly countries. So the measure of the sincerity of DHS claims to want to protect privacy and honor diplomatic commitments, while proceeding with CAPPS-II, is the extent to which the DHS itself works to get Congress to pass travel privacy legislation satisfying international norms of privacy as a human right.

If the DHS makes no move to introduce such legislation (or does so without drafting its bill to meet EU, Canadian, and other key air travel partners’ adequacy standards), yet continues to push for CAPPS-II — knowing that, as this week’s committee vote makes clear, CAPPS-II stands no chance of Europarl approval without such action by Congress — it will be hard to escape the conclusion that the DHS was lying to the EU when it promised to respect the Europarl decision on CAPPS-II.