Memorandum by Department for Transport
Aviation Directorate
1. The Department for Transport Aviation
Directorate has actively engaged in the negotiations on the EU/US
PNR agreements and similar negotiations with Canada. The Department's
aim has been to ensure that such regimes are clear, robust and
proportionate; that air carriers have legal certainty about their
obligations both in the EU and the US; and that transatlantic
air travel is not disrupted. In this work, the Department also
appreciates that there are important data protection, privacy
and security interests, and so works closely with the Department
for Constitutional Affairs and the Home Office to ensure that
these are taken into account.
2. Led by the United States, sovereign states
wishing to protect their borders are increasingly exercising their
perceived legal right to place statutory requirements on transport
operators to provide advance information about intending passengers.
The operators typically face heavy fines, prosecution and/or the
diversion of their craft (at considerable cost to them) if they
do not comply. However, the collection and supply of such data
through reservation and departure control systems raises legal
data protection concerns. The Department has, therefore, been
anxious to ensure that a robust EU-level agreement is in place
that sets out the terms of the data transfer, and to ensure that
it complies with UK and EU data protection law. Otherwise there
is a risk that air carriers could be in breach of US law if they
do not transmit the data, and other relevant legislation, if they
do.
3. If this situation arose it would cause
considerable uncertainty and disruption to UK-US air travel, which
forms the biggest international market for UK airlines with 18
million passengers carried a year between the two countries. Anything
that would disrupt this traffic flow would inconvenience many
passengers, would be seriously harmful to UK aviation interests
and would be very damaging to the wider economy.
4. The Department is also working with air
carriers to raise awareness amongst passengers of PNR data requirements,
and to explain the basis on which data are collected and transmitted.
For example, the conditions of carriage of the main UK airlines
now contain references to the PNR requirements; this additional
information to passengers about how their data will be used is
helpful in complying with the data protection principle that data
must be processed "fairly". And their on-line booking
processes now allow passengers to enter the data directly, and
to give their consent to the transfer.
5. Our objective in the forthcoming negotiations
will be to ensure that this balance between security, data protection
and minimising disruption to traffic is maintained.
6. The Commission's position, as set out
in the proposed Council mandate, is therefore acceptable to us,
although we would have preferred the mandate to include wording
about the cost to airlines of providing the data. We raised this
at an EU level, but it was not included in the final text.
7. The existing EU/Canada PNR agreement
could be used as a model text with a change of legal base. But
it makes sense to use the current EU/US agreement as the starting
point for negotiations.
8. We have been asked to comment on the
sanctions that the US could employ if PNR data is not transmitted,
for example if the UK is unhappy with the conditions under which
it will be used. The US authorities have sanctions, in the form
of fines, available to them if airlines do not provide PNR data
as required. If an airline continuously failed to provide PNR
data the US could suspend the airline's permission to operate
in the US. US operating permits, like the UK's, are conditional
on airlines abiding by US law.
9. Our view is that the best way to ensure
acceptable standards of data privacy is to engage constructively
in EU-level negotiations with the US to ensure that the Department
of Homeland Security provides appropriate safeguards concerning
its use of PNR data. An attempt to link data transfer to landing
rights in Europe in a negotiation with the US almost certainly
would not receive any support from member states. It is also likely
to be in breach of the member states' obligations under the Chicago
Convention which governs international air transport, and their
individual air services agreements with the US. And any restriction
on US airlines' ability to operate to Europe would result in reciprocal
restrictions on EU airlines. As was made clear at the start of
this evidence, one of DfT's aims in its involvement in the EU/US
PNR agreement is to avoid such disruption to aviation traffic.
March 2007
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