Monday, the State Department announced that the United States and the European Union have begun “negotiations on an agreement to protect personal information exchanged in the context of fighting crime and terrorism.” This is very welcome news. As Heritage analyst Sally McNamara wrote earlier this month:
The EU–U.S. counterterrorism relationship has been marked as much by confrontation as it has by cooperation. Brussels has long opposed key U.S. counter-terror programs such as renditions, and under new powers granted by the Lisbon Treaty, the European Parliament has challenged two vital data-transfer deals—the SWIFT data-sharing agreement and the EU–U.S. Passenger Name Records (PNR) Agreement.
The U.S. Air Transportation Safety Act of 2002 requires that the PNR data of travelers to the U.S. be provided to American authorities before arrival of planes in the U.S. In May 2004, the EU and the U.S. agreed to allow airlines operating U.S.-bound flights to provide the U.S. authorities with travelers’ data contained in their reservation systems before the flight’s departure. Being able to analyze the personal and financial data of passengers prior to departure, in conjunction with U.S. and international intelligence databases, allows analysts a further opportunity to spot any red flags and ultimately screen out potential terrorists. However, the European Parliament argued that this agreement violated EU citizens’ privacy rights, and in July 2005 it formally lodged a case with the European Court of Justice. Parliament’s objections revolved around the amount of PNR data transferred to U.S. authorities, the length of time such data could be kept, the degree of redress available to European citizens in cases of data misuse, and the potential for profiling by U.S. authorities.
Although not perfect, the PNR agreement has a number of demonstrable successes to its credit, as Heyman and a number of other U.S. officials have testified, including former U.S. Secretary of Homeland Security Michael Chertoff. Baroness Ashton of Upholland, the former Parliamentary Under-Secretary of State at the Department for Constitutional Affairs and now EU foreign minister, also proclaimed the benefits of PNR-profiling in disrupting human-trafficking rings when testifying before the House of Lords European Committee in March 2007. Furthermore, providing PNR data pre-travel is mandated under U.S. law, and to restrict this transfer contravenes what Congress has stated is necessary to protect American security.
McNamara also recommends: “EU leaders should consent to an umbrella agreement accepting U.S. data privacy standards as adequate. An umbrella agreement will pave a quicker and more efficient path for future information-sharing programs.”