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EU-USA SWIFT/TFTP AGREEMENT: The European Data Protection Supervisor (EDPS) has grave reservations about the proposed Agreement

01 June 2010

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EU-USA SWIFT/TFTP AGREEMENT: The European Data Protection Supervisor (EDPS) has grave reservations about the proposed Agreement: EDPS Opinion (pdf). The EDPS sets out the following criticisms:

1. Necessity and proportionality: The Commission cites the "usefulness" of the SWIFT agreement but Article 8 of the ECHR say that in order to justify interference with private life it must be based on "necessity".
2. Personal financial data is to be transferred in bulk to the USA - the SWIFT system does not allow targeted searches: data should be "filtered in the EU" and only "relevant and necessary data sent to the USA".
3. Data is to be held for 5 years irrespective of whether there is a proven link to a specific investigation. The German Constitutional Court has ruled that 6 months should be the maximum retention period for data not related to a specific investigation
4. Strongly questions whether Europol should be the body carrying out judicial oversight: "It is obvious that Europol is not a judicial authority". Moreover, under the Agreement Europol has a conflicting policing role.
5. The EDPS states that is not at all clear that EU citizens will have the right to see their records, and correct them.
6. Independent oversight and supervision: the Agreement should not derogate or limit the powers of European data protection authorities; data should be provided on number of address and redress requests, and the number of decisions limiting rights of data subjects; and there should be a sunset clause.

Background: Commission proposals: 1) Decision to conclude agreement (COM 316, pdf) and Decision to sign agreement (COM 317, pdf).

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