European Union and United States discussions on traveler data, again

This week the European Union and the United States began to open discussions and negotiations, again, in an attempt to resolve concerns about privacy and use of sensitive personal data of individuals traveling between the regions.

In summary

The EU and the U.S. entered into an agreement in 2004 that requires airlines departing Europe for the U.S. to provide a full listing of all persons on each flight and a range of information about each passenger. A total of 34 pieces of data, including credit card information and telephone numbers, are required to be transferred to U.S. authorities within 15 minutes of a flight's departure for the U.S., or else the flight would lose its landing privileges in the U.S.

The agreement was annulled by the European Court of Justice in May 2006 and replaced by a temporary agreement in October, which runs out at the end of July 2007. Despite detailed negotiations about the data and how it would be used and secured, the European Court ruled that the agreement violated the privacy of individuals and did not provide enough protection from mis-use of the data by the United States authorities.

There is some controversy over which U.S. agencies are allowed access to the data, and the security of the data itself since some of the agencies are private business contractors and not subject to all U.S. government policies.

Specific concerns

Infamously, several individuals have been turned back from the U.S. based upon "mistakes" in use and interpretation of the data. In one high profile case, the former pop music star and British citizen Cat Stevens was sent back to the United Kingdom. He had converted to Islam more than 25 years ago and taken on his current name, Yusuf Islam.

U.S. authorities claimed that they had mistaken him for a terrorism suspect, even though it was quite clear who he was before they sent him back to Britain.

Last year, it emerged that a private company, Swift, which handles up to 11 million money transfers a year, had been passing information to the US authorities in violation of EU privacy rules - a finding Swift disputes.

Now MEPs want to know whether that data was entered into the U.S. Automated Targeting System (ATS), which profiles possible terrorism suspects.

During the summer of 2006, negotiations between the EU and the U.S. broke down completely, leading to a halt of all discussion on 30 September 2006. An interim agreement was put in place for October 2006 to give time for a more finalized agreement by July 2007.

It begins again

In the last several months there have been elections on both sides of the Atlantic Ocean. The compositions of the U.S. Congress and the European Parliament have both changed significantly.

Negotiations could not be stopped indefinitely, and with the New Year and many new individuals representing both parties, discussions have begun again this week.

Members of European Parliament (MEP's) have expressed concern at the way the U.S. is gathering information from EU citizens. The EU justice commissioner told MEPs that banks in several EU countries were unaware details of transactions were going to the US treasury, for one example.

MEPs are still uneasy about the kind of personal data being transmitted to U.S. authorities, and the uses to which the information is put. The EU has until February to decide a strategy and timeline for the negotiations.

"The right to privacy for me is non-negotiable. It has to be respected," Franco Frattini, currently serving as European Commissioner for Justice, Freedom and Security, said.

Washington says access to international bank transactions and passenger records is key to its fight against terrorism.

The U.S. Department of Homeland Security (DHS) released information about the ATS in December, explaining that it was intended to detect high-risk individuals not previously known to the law-enforcement community.

It gives anyone entering the US a numeric score, a measure of the risk he or she is thought to present, which the DHS said could be shared with state and local police and foreign governments.

"The European Parliament is fully supportive of proper co-operation across the Atlantic in fighting terrorism ... What we don't accept is that there should be misuse of data," Liberal MEP Baroness Sarah Ludford said.

She said that ATS went "way beyond anything we had been led to understand the information would be used for".

The commission has already written to the U.S. government to ask whether the ATS profiling system is using air passenger records in ways that fall outside the current EU-US agreement.

One MEP, Dutch Liberal Sophie in't Veld, said it was not a question of being anti-American - American privacy laws were in fact tougher than those in the EU.

The problem was, she said, that those laws did not apply in Europe, and that there was no democratic debate on the American measures in either national parliaments or at the European level.

Resolution

A side effect of the EU court ruling, changing the legal basis of the agreement, is that the EU Parliament no longer has the power to vote it down.

A spokesman for the European Commission has said the plan is for talks to start in March.

But the EU's 27 member states must first agree on the terms of the mandate for the talks, which we be led by the EU's German presidency assisted by the commission.

Both parties are in agreement that they can resolve this. It also should be noted that the transfer of data on people traveling between countries is commonplace.

Persons flying from nearly every country in the world to the U.S. have such data transmitted.

What makes the negotiation delicate is the exact nature of the data, and to address to potential mis-uses and the documented, historical 'mistakes' of the past couple of years.

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