The recent EU-US deal giving US Customs access to personal data on all European citizens flying to the US is far more drastic than originally seemed to be the case. Rather than 'merely' having airlines send the data within 15 minutes of the departure of all flights, the deal means that the US authorities will be accessing it on the airlines' own databases, held on computers that are within EU jurisdiction.
A joint statement on the subject unearthed by Statewatch makes this clear, albeit not exactly in bold type. For example: "Compliance by airlines and reservation systems with US PNR requirements as from 5 March 2003 will not involve unlimited on-line access by US Customs to EU-based data bases, but rather the processing of PNR data for persons whose current travel itinerary includes flights into, out of, or through the US." So that's all right then - they'll only be looking at data on people going to the States, not data on everybody the airlines have records on. That's good to know.
In addition to this remarkable burst of moderation, we have safeguards:
(a) In accessing the PNR data in the territory of the Community, US Customs undertakes to respect the principles of the Data Protection Directive.
(b) In so far as data of a sensitive nature, as defined in Article 8 of the Data Protection Directive, are processed by airlines in their PNR records, in accordance with the applicable EU law, measures to protect these data will need to be jointly developed, after consultation with the airline industry, preferably before 5 March 2003.
(c) As concerns a first party request for disclosure of data by the data subject, US Customs will proceed with disclosure under the Freedom of Information Act (FOIA).
(d) US Customs and the European Commission will consult with each other on a regular basis concerning implementation of this statement and possible enhancements which may be applied, consistent with US law and practice. Such discussions would include the results of any audits or other findings regarding in particular personnel access to information in US Customs databases.
(e) US Customs may provide information to other US law enforcement authorities only for purposes of preventing and combating terrorism and other serious criminal offences, who specifically request PNR information from US Customs.
The statement itself, available here, has an attached annex from the US giving a more detailed explanation of the 'safeguards' and the likely exemptions to them. But clause 8 of the main document is perhaps significant: "The US side took note of the Commission side's view that a multilateral agreement was necessary in the longer run, the Commission believing it to be entirely impractical for all airlines collecting and processing data in the EU to have to operate under multiple unilaterally imposed or bilaterally agreed requirements."
It didn't agree, it took note, and we fear we must interpret this as effectively meaning the US reckons the EU can go whistle for its multilateral agreement.
Says Statewatch editor Tony Bunyan: ""Anyone who believes that US Customs, which is now part of the Home Security Department, will limit itself solely to downloading information on passengers booked to fly to the USA is very naive... US Customs will have access to passenger details in advance and will be running the names through all the available intelligence databases, so there is every likelihood they will try to stop 'suspected' individuals from boarding the plane."
It certainly seems difficult to conceive of the US not using, in the name of national security, all of the information it now has access to. In its own territory it is currently proposing the extensive use of data collection and profiling as one of IT's key contributions to the war on terror, and trying to do something similar in Europe must surely be tempting. Even more tempting, given that not that many of Europe's large supply of terrorists and subversives travel to the US, but lots of them travel in Europe, would be doing it with data on all air travel starting in Europe. But they're not going to do that, they said so. Honest. ®