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EU-USA Justice and Home Affairs meeting - March 2017

17 April 2017

EU  
EU-USA Justice and Home Affairs meeting

- USA expresses "interest" in EU plan for Big Brother database
- PNR, returns and readmission, Privacy Shield. Visas reciprocity, bilateral agreements on access to ISP data
17.4.17
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The meeting of EU-USA Justice and Home Affairs Senior Officials in Valletta on 1-2 March 2017 discussed a number of key issues: Outcome of the EU – US Justice and Home Affairs Senior Officials Meeting, Valletta, 1-2 March 2017 (LIMITE doc no: 7163-27, pdf).

Interoperability of information systems and information exchange

"The EU delegation informed of the conclusion of the High Level Expert Group expected for May this year. The Group's conclusions should contain important actions and more effective technological solutions for better interoperability solutions across the JHA area. The EU highlighted a number of actions foreseen for the next couple of years: automated screening of data quality, the European search portal, the more systematic use of biometric data for tracking multiple identities, the set up of a common identity repository with alpha-numeric data and the adoption of ETIAS."

The Interim report of the EU's High Level Expert Group (pdf) on interoperability issued this report in December and its final report is expected in May. Its proposal includes:

• the creation of a "Single Search Interface" (SSI): "it is feasible to a European search portal capable of searching in parallel all relevant EU systems" (eg: SIS, Eurodac, Europol, VIS and so on) and to add access, via the SSI to a:

• "A shared biometric matching service" flagging the existence of biometric data on all systems" and

• A "Common repository of data", personal data gathered, for example, through the new Entry-Exit System (EES) and the planned ETIAS (European Travel Information and Authorisation System). See the Opinion of the European Data Protection Supervisor's Opinion (pdf) where the EDPS strongly questions a centralised system:

"One major concern regarding profiling is the fact that it is indispensably related to a high degree of generalisation and uncertainty regarding both the correctness of the predicted behaviours, and the accuracy of attributing detected patterns’.... [a] watchlist should be more reliable than a screening against a non-transparent profile created by an algorithm..."

See also: Council Declaration on Law Enforcement Access to the databases in the area of Justice and Home Affairs(See page 5, pdf):

"The Council calls on the Commission to propose a comprehensive framework for all Member States, with regard to law enforcement access to the different databases in the area of Justice and Home Affairs, with a view to greater simplification, consistency, effectiveness and attention to operational needs, taking into account the current legislative framework and the state of play of the negotiations concerning the relevant databases, as well as the outcome of the work of the High Level Expert Group."

Once the SSI is in place it will cover all present and planned EU law enforcement, travel, asylum and immigration and future databases.

It is no wonder that:

"The US delegation expressed interest in receiving regular information on the upcoming developments mentioned by the EU"

Foreign Terrorist Fighters - return and reintegration

"Looking into future cooperation, the US delegation recalled recent statements by the new Secretary of Homeland Security John Kelly on the need to bring down barriers between intelligence communities. In practice, the US and the EU should explore the possibility of exchanging experiences in the collection of API and PNR data and screening." [emphasis added throughout]

"The EU delegation highlighted in particular the recent progress towards a more operational phase of cooperation with the US on counter-terrorism. Europol has developed into an important hub for information sharing on counter-terrorism matters and for bringing the counter-terrorism and law enforcement actors together. The upcoming deployment of Europol personnel to Operation Gallant Phoenix is an important development for a wider sharing of field data."

See: U.S. Secures Vast New Trove of Intelligence on ISIS (NYT, link)

PNR

The EU side stated that:

"that the ECJ opinion on PNR Canada is still pending. Whatever the content of that opinion, it would not have any direct effect on the EU-US PNR agreement."

While:

"The US delegation expressed its availability to further exchanges with the EU on the use of PNR data. It also conveyed its apprehension with the potential effects of a negative ECJ opinion on PNR Canada, since the issues being examined by the Court would apply, mutatis mutandis, to EU-US PNR exchanges. In that sense, it called for both sides (also with Canada) to launch informal consultations on possible scenarios and eventual mitigating measures."

EU-US Readmission experts meeting

"It represented a good opportunity for exchanging experiences on practical
measures for more effective return policies... The US delegation shared the positive assessment of the meeting's outcome and expressed its willingness to continue exchanges, especially regarding countries where both sides have strong inside information."

Visa issues

As usual the meeting discussed the denial of via-free entry to the USA by visitors from 5 EU Member States - visa reciprocity:

"EU delegation regretted the lack of progress and reminded US delegates that legal action remains an option if a solution is not found."

Data Protection

"The EU delegation thanked the US for confirming that the Executive Order does not encroach upon the Privacy Shield and the Umbrella Agreement, but it also requested the US side to provide further assurances to this effect."

But see: European Parliament: Data Privacy Shield: MEPs alarmed at undermining of privacy safeguards in the US (pdf)

E-evidence

The US delegation:

"it highlighted the rather sensitive issue of collaboration with ISPs for the release of data, where US action is limited by the Electronic Communications Privacy Act. The US delegation ruled out changes to US law in this respect, but mentioned the possibility of executive agreements with EU Member States to overcome current limitations, in line with theagreement currently being negotiated with the UK."

"Executive agreements" (bilateral agreements) with each EU Member State?

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