Wednesday, 24 March 2004

European Parliament to vote on transfer of PNR data to the USA

Consideration and a vote on the draft European Parliament resolution against PNR data transfers to the USA, as recommended for approval by the LIBE Committee, has been placed on the draft agenda for the Europarl plenary session on Wednesday, 31 March 2004, in Strasbourg.

Statewatch, citing and internal Europarl documents, reports on the intense lobbying being carried out by the USA, and by factions within the EU, in support of a deal to authorize the already ongoing USA access to reservation data collected in the EU, and to find (in the face of plain facts to the contrary) that the non-protection from disclosure or misuse of travel data in the USA somehow satisfies EU legal standards of “adequacy” of data protection.

But the latest proposal, which is being presented to the council of EU governments as a way to try to bypass the Parliament, still rests on the so-called Undertakings which the USA Department of Homeland Security has promised to publish (but hasn’t published yet) in the Federal Register.

As anyone who has read the Constitution knows, mere publication in the Federal Register does not, and cannot, give the “Undertakings” any legal significance in the USA: international treaties involving the USA must be ratified by the Senate before they come into effect. Members of the European Parliament, and of other EU and national government bodies, should think twice before finding that a draft treaty — not yet introduced, much less ratified, in the Senate, and thus not subject to being invoked as binding in any USA legal proceeding — provides anyone with any legally enforceable rights at all, much less “adequate” protection for privacy rights in PNR data.

Aside from the fact that the Undertakings are legally meaningless and completely unenforceable (at least in the USA) unless and until they are ratified as a treaty by the Senate, which neither the Undertakings nor the DHS have ever mentioned as a possibility, the Undertakings continue to contain, and to be based on, materially and demonstrably false and misleading claims about the nature of the data contained in airline reservations (PNRs).

As I noted in my earlier detailed analysis of the draft Undertakings, and of “Attachment A” to the Undertakings containing the list of PNR data elements to be authorized for access by the USA, the factual misrepresentations are so extreme as to betray either gross technical incompetence or deliberate intent to mislead.

That should come as no surprise: the claims made by the DHS about its proposed CAPPS-II airline passenger profiling and surveillance system have likewise been based on a profoundly inaccurate and misleading representation of what data is contained in PNRs, and how and by whom it is collected and transmitted.

European and other legislators abroad, still stinging from having been misled by the USA about the alleged factual basis for the invasion of Iraq, should — and probably will — exercise much more due diligence both in investigating the factual claims about PNR data in the Undertakings, and in auditing whether (as I’ve previously reported that it has not) the USA has actually complied, to date, with the restrictions the Undertakings claim that it has placed on its access to other PNR data.

Link | Posted by Edward on Wednesday, 24 March 2004, 16:13 ( 4:13 PM)
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