28 March 2012
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EU-PNR: JHA
Council to agree the surveillance of all airline passengers?
The Justice
and Home Affairs Council (JHA) meeting in Luxembourg on 29-30
April is expected to adopt a Spanish proposal to introduce the
compulsory collection of all passenger name data (PNR) from airlines
in 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.
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.
Tony Bunyan,
Statewatch editor, comments:
"It would be quite extraordinary if the EU were 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 are being given no time to scrutinise the radically changed initiative.
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 democratic process and brings the legitimacy of EU decision-making into disrepute."
Background
1. Report
and draft Directive
2. Statewatch: Observatory
on EU-PNR
3. USA: GAO
report on CAPPS II
4. ACLU challenge "watch-lists": ACLU
press release
(link) The
ACLU case as filed
(link)
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