Turbulent Flight Plan

Civitas, 1 June 2011

Justice Secretary Ken Clarke has defended a US-EU data retention agreement as “crucial” to improving international security. “Given the threats we face are global in nature,” he said in Brussels, “we cannot provide the protection we all wish to see without working with our non-EU partners”. However, far from being equal negotiators, the EU has submitted to belligerent US demands, leading to an inconsistent, disproportionate and expansionist scheme.

Under this system – a passenger name record (PNR) – 19 items of data would be collected from each airline passenger, including their bank details, home address, and even the weight of their luggage.

Passenger data would be transferred automatically to a dormant database 5 years after the flight, but could be moved back to the active database for a further 10 years. The information would be held by the US Department of Homeland Security, but can be passed to agencies in countries outside the US and Europe. At present, the system only covers transatlantic flights, however there is a real risk that information retention could be initiated for other international flights as well.

The US has been unequivocal in demanding complete cooperation and support for the scheme. Senate Homeland Security Committee Chairman Joe Lieberman has stated that the US “simply cannot accept” any efforts by the EU to dilute the plans that are “an important part of our layered defences against terrorism”.

The latest proposals go further than any comparable scheme previously endorsed by the EU. Terms have been agreed with Australia to allow some passenger data retention, however information can only be held for five and a half years. Similarly, data of flights into, out of or within Europe are kept for just five years under the EU’s own PNR scheme. Moreover, the plans seek to expand the current provisional US-EU arrangements, extending the time in which airlines must provide information from 72 hours before a flight to 96 hours.

Unsurprisingly, the move has caused outrage among civil liberties campaigners. MEP for London, Claude Moraes, described socialist MEPs as “absolutely appalled” by the plans, warning that the scheme is ripe for ‘mission creep’: information being used for purposes other than combating terrorism. And Jan Philip Albrecht MEP, a member of the European Parliament’s Civil Liberties Committee, has argued that the US proposals violate the fundamental constitutional principles shared by EU member states.

Data retention has also come under fire in the German Constitutional Court, which held that six months was the maximum appropriate time limit for keeping personal telecommunications data. Although the issue has not arisen directly in the UK, last month, the Supreme Court declared that the current police policy of indiscriminate DNA retention is incompatible with Article 8 of the European Convention on Human Rights. Furthermore, it seems that the EU itself is aware of the potential legal pitfalls. A leaked opinion from the legal advisers to the EU Council of Ministers warned that the PNR system envisaged would be disproportionate and violate privacy laws.

There are some safeguards contained in the proposals. The text gives individuals who are wrongly identified as a threat the right to petition the US federal court for judicial review, and procedures would be established to deal with data loss or unauthorised disclosure.

The agreement must survive the scrutiny of the European Parliament before it comes into effect, although the US is unlikely to take kindly to significant tampering with their plans. Indeed, while the EU has insisted that PNR information must in “no circumstances be used for data mining or profiling”, US analysis practices remain opaque; the text refers only to “processing and analysing” PNR data.

The necessity for extending the retention period for the US scheme has yet to be proved and details of data use have been kept deliberately ambiguous. Nonetheless, given that the UK has already declared its intention to ‘opt in’ to the European PNR, it is likely to follow suit in relation to the US counterpart later in the year. In light of its tenacity to this point, it is unlikely that the US will bend to attempts by the EU to water-down the scheme: it is now up to the MEPs to reject the proposals altogether.