House of Lords - European Union - Twenty-First Report

Select Committee on European Union Twenty-First Report

CHAPTER 8: summary of conclusions and recommendations

157. It is the perennial conflict between the security of the public and the privacy of the individuals who make up the public which is at the heart of our inquiry. A balance has to be struck, and the guiding consideration must be the principle of proportionality: the collection and retention of data for security purposes must be no more invasive of individual privacy than is necessary to achieve the objective for which they are collected. That objective must be narrowly and clearly defined. (paragraph 5)

Passenger Name Records

158. It is an important principle of democratic accountability that Parliament should be able to reach its own conclusions on the value of PNR in combating terrorism, and not have to rely on statements from the executive. This would help to secure public confidence. (paragraph 22)

159. Nonetheless, having received no evidence to the contrary, we are prepared to accept that PNR data constitute a valuable weapon in the fight against terrorism and serious crime, and that their continued use is both necessary and justified. (paragraph 23)

160. The principal risk of error in using PNR data seems to us to arise, not from the quality of the data, but from the erroneous interpretation of the data, even if accurate. (paragraph 27)

161. It is important that intending passengers should be aware of who will receive their personal data, and subject to what conditions. We agree with the Working Party of national data protection authorities that the airlines should be responsible for informing passengers, and we endorse the Working Party's proposals. (paragraph 49)

The Interim Agreement

162. The negotiators should as a matter of principle insist that data transferred under the 2004 and 2006 Agreements must be destroyed no later than 3.5 years after the transfer, unless a formal Agreement is negotiated allowing these data to be retained longer. (paragraph 72)

163. Whatever the justification for extending data elements, for wider sharing of data, or for using data to identify possible carriers of dangerous communicable diseases, there is no justification at all for doing so through a unilateral declaration by one of the parties to an agreement. (paragraph 76)

164. An undertaking which includes a provision allowing the party giving it to amend it virtually at will is of very limited value, and scarcely deserves the name. No such provision should be included in any future agreement. (paragraph 77)

Negotiations for a new Agreement

165. In our view the worst possible result of the negotiations would be an agreement to extend the current Interim Agreement. (paragraph 84)

THE VIEWS OF THE EUROPEAN PARLIAMENT AND THE DATA PROTECTION AUTHORITIES

166. The fact that the European Parliament no longer has a formal role to play is not a reason why the views of its members should be disregarded. On the contrary, in a Union of democracies special attention must be paid to the views of representatives, since they are well placed to balance the public good against private rights. (paragraph 89)

167. The European Data Protection Supervisor, and national data protection authorities individually and collectively in the Article 29 Working Party, have great experience of the practical working of data protection laws and of non-binding declarations on the handling of personal data. Those negotiating a new agreement should be guided by their opinions. (paragraph 90)

THE EC/CANADA PNR AGREEMENT

168. We believe that the PNR Agreement with Canada could be a useful starting point for the negotiations with the United States. (paragraph 92)

DATA ELEMENTS

169. We expect those negotiating the new Agreement to take a robust attitude in the negotiations before being satisfied that any additional data item is essential and therefore permissible. (paragraph 97)

170. It would be wrong to include among the agreed data elements open-ended data elements like "general remarks" or "open fields", which merely serve as a means of introducing other data elements not specifically listed. (paragraph 99)

UNDERTAKINGS

171. We hope that the talks will have started on the basis that the Undertakings being negotiated, unlike the current ones, are legally binding on the United States authorities. (paragraph 100)

172. All the terms of the Undertakings being negotiated must be specific, unequivocal, contained in the document itself, and not susceptible of amendment without the agreement of all the parties. (paragraph 102)

173. If any clarification is needed, this is a matter for subsequent open negotiation between the parties. There can be no scope for amendment by unilateral "interpretation" of the Undertakings. (paragraph 103)

PURPOSE LIMITATION

174. Under the 2004 Agreement the use of PNR data was to be limited to:

the prevention and combating of terrorism and related crimes;

other serious crimes, including organised crime, that are transnational in nature; and

flights from warrants or custody for these crimes.

The negotiators should seek to retain these limitations in the new Agreement. (paragraph 107)

175. We believe that the use of PNR data for general law enforcement purposes, as opposed to countering terrorism and serious crime, is undesirable and unacceptable. (paragraph 108)

176. If, contrary to our view, it is agreed that data should be used for other purposes, those purposes must be specifically listed at the outset. Words such as "vital interests of the data subject" are too vague. (paragraph 109)

RETENTION OF FUTURE DATA

177. We are prepared to accept that routine retention of data for longer than 3.5 years may be necessary, and may be acceptable so long as the data are kept and handled securely. What is not acceptable is for these data to be used in that time for purposes other than those strictly permitted under the Agreement. (paragraph 114)

DATA SHARING

178. If United States government authorities with whom data are shared by the Bureau for Customs and Border Protection (CBP) believe that other authorities need access to such data, the decision must be for CBP. Access should be subject to the same undertakings as CBP has given. Records of this data sharing should be kept for independent inspection. (paragraph 118)

179. It may not always be possible for data to be scrutinised on a case by case basis before they are shared with other authorities, but indiscriminate bulk sharing should not be permitted. It must be for CBP to "push" the information to other authorities, not for those authorities to "pull" it from the CBP database. (paragraph 119)

180. The negotiators must stress how serious it is for an individual to be wrongly placed on a no-fly list, and must ensure that provision is made for rapid access to an enforceable means of redress. (paragraph 123)

"PULL" V "PUSH"

181. The negotiators should ensure that the United States honours the commitment given three years ago to move to a system allowing the airlines to "push" the data to them, and should insist on a single "push" of data at the time of departure. (paragraph 130)

REVIEW OF THE WORKING OF THE AGREEMENT

182. The new Agreement must provide for thorough annual reviews of the working of the PNR Agreement, and the parties must ensure that they take place as intended. The EDPS and national data protection authorities must take part. The EU team must be allowed the fullest access to data to enable it to assess the value of PNR data in the fight against terrorism. (paragraph 137)

183. This is an Agreement between equal parties. The EU team should not have to sign general non-disclosure agreements, even though there will of course be matters which they will agree not to disclose. (paragraph 138)

184. Reports of reviews should set out in detail the degree to which data are shared by CBP with other US authorities, and the conditions applying to such data sharing. (paragraph 139)