Friday, 18 May 2007
Does the Chicago Convention authorize government demands for PNR's? No.
In his testimony before the European Parliament on Monday, USA Secretary of Homeland Security Michael Chertoff claimed that the authority for governments to demand access to passenger name records (PNR's) is expressly provide by the Chicago Convention (the 1944 fundamental international civil aviation treaty).
I was surprised by Chertoff's statement, since I had never heard such a claim before. Today I read through the entire treaty, and confirmed that Chertoff was wrong: The Chicago Convention doesn't require that governments have access to PNR's.
The only related provision of the treaty is in Article 29 (page 16 of this PDF document):
Documents carried in aircraft
Every aircraft of a contracting State, engaged in international navigation, shall carry the following documents in conformity with the conditions prescribed in this Convention,...
(f) If it carries passengers, a list of their names and places of embarkation and destination;
This provision of the Chicago Convention falls far short of what Chertoff claimed. It requires that a manifest (list of passengers) be carried on board the aircraft, not that the government have access to PNR's.
- The required fields (3 per passenger) in the manifest are specified in the treaty: name, place of embarkation, and destination. None of the multitude of other data in PNR is required to be included in the manifest.
- The manifest is required to be physically carried on board the aircraft. The treaty is silent on when or if any government has authority to search the aircraft or obtain the manifest. The treaty doesn't require, in and of itself, that the manifest be provided to any government.
- Since the manifest is only required to be carried on board, nothing in the treaty requires that it be subject to search or seizure by the government of the destination country until the aircraft itself is within the jurisdiction (i.e. the airspace) of that country.
The Chicago Convention is thus surprisingly precise, even to the enumeration of required fields and the manner of transmission of the data (physically onboard the aircraft). It cannot be used as a basis for a demand by governments for PNR data, and does not override the other treaties that guarantee the right to travel .
Nothing in this provision of the Chicago Convention requires that any additional information be collected beyond the name, place of embarkation, and destination of each passenger. Nothing in this this provision of the Chicago Convention requires that any information be provided to any government, much less that any information be provided to the government of the destination country prior to departure from any other country.
Chertoff used to be a Federal judge. He ought to know better, or to read the law more carefully.Link | Posted by Edward on Friday, 18 May 2007, 14:13 ( 2:13 PM) | TrackBack (0)