USA backs away from promise to respect European Parliament vote on airline data transfers

On 13 February 2004, USA Assistant Secretary of Homeland Security for Border and Transportation Security told a CAPPS-II Media Roundtable staged, transcribed, and released by the Department of Homeland Security itself on its Web site:

Question: Mr. under Secretary, Robert Block from the Wall Street Journal, I have a letter here from [European Commissioner] 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. [emphasis added]

Today, the DHS appears to have changed its mind about whether transfer of airline Passenger Name Records (PNRs) to the USA must be approved by the European Parliament.

According to the transcript prepared and posted by the DHS of today’s news conference by Secretary of Homeland Security Tom Ridge and European Commissioner of Justice and Home Affairs Antonio Vitorino:

Secretary Ridge: We had a good discussion about the need to share advance passenger information data so that we can protect our skies and keep terrorists off commercial airliners and away from our borders. We share a common interest in making this vital information available in a manner that will help us protect our citizens while, at the same time, maintaining the privacy of that information of these travelers….

Question: Do you have a Plan B if the European Court of Justice rules that the advance passenger information agreement violates European privacy laws?

Secretary Ridge: Well, I’m not quite familiar with the technicalities of a ruling of that sort. My sense is that it would — I believe we would still be able to continue to exchange the passenger name records, but I’m going to ask the Commissioner to publicly assess the impact if we had an unfavorable decision from the court.

Commissioner Vitorino: Well, first of all, I would like to clarify that the conclusion of this process has not yet been done. And this week, the Commission will take a decision on Wednesday. And next Monday, the Council of Ministers will take the final decision.

I don’t want to anticipate those decisions, but likely those decisions will be in favor in the sense to go ahead with the adequacy finding statement and with the international agreement. That will most likely change the nature of the case, the court case, that has been raised by the Parliament. But I see no obstacles for the proceedings, according to what has been agreed, until the court takes a position in some time. [emphasis added]

No explanation has been offered as to why the USA (or the European Commission) no longer feel it necessary to respect the decisions of either the European Parliament or the European Court of Justice, but are prepared to treat the Commission decision as “final”.