11 Use of Passenger Name Record for law
enforcement purposes
| (a)
(29109)
14922/07
+ ADDs 1-2
COM(07) 654
(b)
(30252)
16457/08
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Draft Council Framework Decision on the use of Passenger Name Records (PNR) for law enforcement purposes
Draft Council Framework Decision on the use of Passenger Name Records (PNR) for law enforcement purposes — Report on thematic work carried out from July to November 2008
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| Legal base | (a) Articles 29, 30(1)(b) and 34(2)(b) EU; consultation; unanimity
(b) —
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| Deposited in Parliament | (b) 10 December 2008
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| Department | Home Office |
| Basis of consideration | EM of 5 January 2009
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| Previous Committee Report | (a) HC 16-xxi (2007-08), chapter 7 (14 May 2008), HC 16-xviii (2007-08), chapter 4 (2 April 2008), HC 16 -xiii (2007-08), chapter 5 (27 February 2008), HC 16-vii (2007-08) chapter 7 (9 January 2008)
(b)None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) not cleared
(b) cleared
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Background
11.1 The data collected by airlines in the operation of their
computerised reservation and ticketing systems is known as the
Passenger Name Record.[62]
The draft Framework Decision on the use of PNR data for law enforcement
purposes (document (a)) prescribes obligations relating to the
handling of PNR data for the purposes of preventing and combating
terrorist offences and organised crime.
11.2 We have considered the draft Council Framework
Decision on the use of Passenger Name Record (PNR) data for law
enforcement purposes (document (a)) on a number of occasions,
most recently on 14 May 2008. When we considered the proposal
on 14 May 2008 we noted that negotiations were still at an early
stage, with the major issues of the scope of the proposal and
the treatment of sensitive personal data not having been discussed
in any detail. Whilst we welcomed the Minister's agreement with
some of the concerns expressed by the Information Commissioner
and the Article 29 Data Protection Working Party,[63]
notably that the "push"[64]
method was preferable to the "pull"[65]
method and that data retention periods should be proportionate.
We also recalled a number of other serious criticisms of the proposal
made by the Article 29 Working Party such as the absence of any
justification of a pressing need to collect data other than API
data,[66] the excessive
amount of personal data to be transferred by carriers, the need
for the data controller to filter sensitive data and the unsatisfactory
nature of the data protection regime. We noted that each of these
criticisms had been strongly supported by the Information Commissioner
and we looked forward to a further account by the Minister in
due course as to how these concerns were being addressed.
The report on thematic work carried out from July
to November 2008
11.3 The report (document (b))records the results
of consultations carried out during the French Presidency. These
have been conducted by a 'Multidisciplinary Group ' (MDG) which
has sought views from air transport operators, the EU counter-terrorism
coordinator, PNR specialists in the police and customs services
of the Member States, the Agency for Fundamental Rights, the European
Data Protection Supervisor and the European Parliament.
11.4 The results of these consultations are summarised
under the headings of; the need for a European PNR instrument,
the creation of a decentralised system (rather than one centralised
system at EU level), the technical and financial constraints,
and the effective and transparent processing of PNR data in accordance
with fundamental rights. A final section of the report deals with
the outstanding issues of the use of sensitive personal data,
the period within which data may be held and the exchange of bulk
data.
11.5 The report records general agreement by the
relevant services with experience on PNR that the establishment
of a PNR database can be useful for customs services in relation
to drug trafficking and trafficking in human beings and the smuggling
of counterfeit goods and that for police services it may provide
information about offenders' behaviour such as itineraries and
frequencies of journeys, with opportunities "to analyse behavioural
tendencies in criminal circles" in order to prevent and detect
crime. The report argues that a European PNR system would facilitate
the alignment of technical systems in the Member States and would
encourage the exchange of good practice as well as contributing
to effective cooperation between law enforcement authorities and
the application of common standards of data protection.
11.6 The report notes that the "vast majority"
of delegations reject the approach of having a centralised system
of PNR at EU level and prefer the establishment of databases at
national level which are able to contribute to domestic security
and to respond to the needs of other Member States. The report
also notes that a "consensus is focusing" on the coverage
of air travel between the EU and third States (including transit
within Europe) for the purposes of preventing, detecting, investigating,
prosecuting and punishing terrorism and "of a group of other
serious offences to be defined by reference to the list in the
Framework Decision on the European Arrest Warrant". The report
also states that it is preferable to provide for the systematic
transmission of PNR data for all flights, rather than selected
flights. The system should also allow national systems to continue
to use PNR data for their own purposes such as combating illegal
immigration or protecting public health, and to cover means of
transport other than aircraft.
11.7 The report states that technical and financial
constraints on the transport business should be kept to a strict
minimum, with no obligation being imposed on air carriers to collect
data, but only an obligation to transmit data they have already
collected for their own commercial purposes. The list of data
collected and technical transmission protocols should follow international
standards set by the International Civil Aviation Organization
and applied by IATA, with transmission taking place only twice,
48 hours before take-off and on flight closure. The report notes
that the "push" method "can easily be retained"
with a transitional period granted to airlines to bring their
systems up to date and with a single set of data protection arrangements
applying whether the data is transmitted for commercial purposes
or to public authorities.
11.8 As far as the effective and transparent processing
of PNR data is concerned, the report notes a consensus that the
members of a Passenger Information Unit (PIU) which would be set
up in each Member State should belong to a public authority of
the Member State in question, and that storage of the raw data
in a secure database was far preferable to allowing such data
to be transmitted to external entities. The report also draws
attention to the need to separate the responsibilities of the
PIU from those of competent national law enforcement authorities.
The PIU would be concerned essentially with data collection and
analysis, with the competent authorities responsible for determining
criteria for selecting flights for risk analysis and taking decisions
on measures to be taken in the light of the data. The further
processing of PNR data would fall into two main categories. First
are "strategic analyses" to identify those passengers
likely to pose a risk. According to the report, the operations
which support these analyses should be precisely defined, on account
of legitimate concerns raised by the concept of profiling[67]
and notes that "practitioners displayed a lack of interest
in purely speculative searches such as those carried out for commercial
purposes : they have neither the need nor the time to perform
such searches". Any analysis should be based on criteria
founded on objective factors previously established by the competent
authorities of the Member States "which make it reasonable
to suppose that the persons identified by these factors are or
could be involved in the preparation or commission of an offence".
The second category of further processing concerns specific searches
carried out in response to specific queries within the framework
of an investigation conducted by the competent authorities.
11.9 In its treatment of fundamental rights, the
report notes that the option of the sole use of the "push"
method "can easily be retained" and that the list of
data to be transmitted could be reduced compared with the original
proposal since it is not deemed necessary to include information
relating to unaccompanied minors. The report also notes that there
should be uniform data protection provisions applying to all transmissions
of data whether for commercial purposes or to public authorities
and that such provisions should comply, at the very least, with
the Council of Europe Convention of 28 January 1981. The report
also calls for external supervision by independent authorities
and for any exchanges of data to comply with the rules of the
Framework Decision on data protection and that clear rules should
be adopted to exclude arbitrary or discriminatory treatment, with
no risk assessment criterion being based on a person's race or
ethnic origin, religious belief, political opinion, trade union
membership or health or sexual orientation. The report also states
that any instrument should provide for verification of the lawfulness
of requests received by a PIU, for the "traceability"
of all access to the PNR database, for rectification and erasure
of data, measures on data security and means of informing passengers
of their rights to rectification and erasure.
11.10 The report notes a number of issues which have
not been discussed in sufficient detail. These include the treatment
of sensitive personal data which may be entered by the airline
in a passenger's PNR file in order to improve his comfort on board
and which may reveal religious adherence or a state of health.[68]
The report also notes that it has proved difficult to reach agreement
on a harmonised data retention period, but that on the basis of
exploratory discussions a compulsory data retention period could
be set at 3 years with a supplementary data retention period of
between 3 and 7 years, making for a total data retention period
of between 6 and 10 years.
The Government's view
11.11 In her Explanatory Memorandum of 5 January
the Parliamentary Under-Secretary of State at the Home Office
(Meg Hillier) explains that the Government welcomes the proposal
by the French Presidency to broaden the scope of the EU PNR Framework
Decision to include the use of PNR data to combat serious crime,
but that the scope of the EU PNR instrument should be flexible
enough to cover differing national priorities, including for the
UK the ability to use PNR data for immigration purposes. The Minister
also welcomes the solution proposed by the report that the processing
of PNR data on intra-EU flights or from other modes of transport
should not restricted by the instrument.
11.12 The Minister explains that the Government does
not agree with the systematic (100%) collection of PNR data from
all routes into the EU, as suggested in the report. The Government
does not believe this to be necessary or proportionate, and advocates
a targeted approach to the collection of PNR such as that envisaged
by the Government's e-Borders programme, adding that by 2013 the
Government aims to collect PNR data on 100 million passenger movements
per year which will account for about one third of all air passenger
movements.
11.13 The Minister adds that the Government supports
the suggestion made in the report that there should be a gradual
phasing-in of the PNR system with a review clause to permit the
discussion of the systematic collection of data once Member States
have acquired some experience of operating the system, and believes
that such provision should be made if the systematic collection
of data remains a principle in the text of the Framework Decision.
11.14 The Minister also comments that the Government
believes that the burdens on carriers should be minimised and
advocates a flexible approach with the first 'push' of data to
the PIU taking place within 24 to 48 hours of departure. The Minister
adds that the Government also agrees with the proposal to make
clear a distinction between the PIU and competent authorities,
but argues that it should be for members of the PIU to be able
to set risk profiles based on intelligence received in the PIU
on patterns of behaviour that could indicate individuals of a
higher risk, noting that the French Presidency's report limits
the ability to set profiles to members of a competent authority.
Conclusion
11.15 The French Presidency's report is plainly
a detailed and helpful analysis of the issues raised by the proposal
for an EU Framework Decision on the processing of the Passenger
Name Record. We note the Government's position on some of these
issues, and we shall look forward to examining these further when
we consider further negotiations on the proposal.
11.16 We clear the report (document (b)) but shall
hold the draft Framework Decision (document (a)) under scrutiny,
pending a reply by the Minister to our earlier report.
62 The Passenger Name Record (PNR) consists of all
that information which is necessary to enable reservations to
be processed and controlled by the booking and participating air
carriers for each journey booked by or on behalf of any person.
Such information includes such matters as the name, address and
telephone number of the passenger, information relating to payment,
travel itinerary, seat numbers and baggage information, and the
travel status of the passenger (including any "no show"
information i.e. history of not turning up for a flight). PNR
data is to be distinguished from Advanced Passenger Information
(API) data which is information derived principally from the machine-readable
section of national passports and which allows the country of
destination access to information about the identities of passengers
before they reach the territory of that country. Such data serves
to confirm the identity of the passenger, such as nationality,
passport number, given names and date of birth, but does not otherwise
convey any information about the history of the person. Back
63
An independent advisory body on data protection and privacy established
under Article 29 of Directive 95/46/EC. Back
64
A system whereby the carrier provides the data from his database. Back
65
A system whereby the data is extracted by a third party form the
carrier's database. Back
66
See footnote 62. Back
67
As to which see 21st Report (2006-07) of the House
of Lords European Union Committee, paragraph 16 where data profiling
is defined as "the determination of characteristics of combinations
of characteristics which might identify someone or something as
potentially worth investigation". Back
68
Examples would include a passenger's dietary requirements or whether
there is any disability. Back
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