Examination of Witnesses (Questions 140-159)
MR JONATHAN
FAULL AND
MS CECILIA
VERKLEIJ
22 MARCH 2007
Q140 Chairman:
Director General, can I welcome you, and thank you very much for
coming. As you know, this is an evidence session in two parts
and I think you have kindly agreed to answer some questions for
us, first of all, on PNR and, secondly, on Prüm. Depending
on how the conversation goes, I suggest that I might be quite
rigorous in trying to divide the meeting into two separate hours.
As you know, this is a meeting to consider two subjects on which
we are proposing to report. This meeting is on the record and
a note is being taken of the discussion and you will, of course,
as before, be sent a transcript for any comments you may have.
Without any further ado, I wonder if I could start by taking PNR
as the first of the subjects. What contribution do you think the
2004 and 2006 Agreements have made to the fight against terrorism
and other serious crime? Has an assessment ever been made of the
effectiveness and proportionality of the transfer of PNR data?
Mr Faull: I think it makes
sense to think of the two Agreements as one. The 2006 Agreement
was an interim agreement, which will expire in July and we hope
will be replaced by a new one but, essentially, it carries over
the 2004 Agreement which, as you know, was struck down by the
Court on essentially procedural legal grounds and was put back
in place. I know we will have a discussion a little later on about
the precise effect of the letter interpreting the Undertakings,
but the Undertakings remain the same, the Agreement remains the
same, and I think its impact should therefore be judged across
the whole period. That having been said, we are given to understand
by our American partners, first of all, that they continue to
believe that Passenger Name Records provide a very useful source
of information when used in conjunction with other information
they have in the fight against terrorism and serious crime. They
have given us some specific examples of the use to which PNR has
been put to that end and stress, for understandable reasons, two
things, in fact, one that European agencies have also benefited
from their work using PNR data in our own fight against terrorism
and serious crime and, also, of course, the other thing I have
to say is unfortunately the examples they give, which even to
me are only sometimes in outline, are very highly confidential.
That has been repeated over the months and years during which
we have been discussing these issues with the United States. The
second point to make in this respect is we carried out a very
thorough Joint Review in September 2005 of the way in which the
Agreement and Undertakings had been applied until then, "we"
meaning the Commission, plus Member States, including data protection
experts. There is a version of the report of the Joint Review
in the public domain. In summary, the result of the Joint Review
was, firstly, that the Agreement had been complied with rigorously,
the Undertakings had been complied with rigorously, and the PNR
data were being used, therefore, properly in the way in which
they were supposed to be, and they had been instrumental in allowing
the US authorities to identify high risk passengers who, when
other information was added to the analysis, could be identified
as engaging in or suspected of engaging in terrorist activities.
Q141 Earl of Listowel: Director General,
when a Joint Review of the working of the Agreement was carried
out—we have been discussing that—access by the European
data protection authorities to files was restricted on security
grounds. Did the European team feel at that time they had sufficient
facts to assess the working of the Agreement? Will a similar provision
be incorporated in the new Agreement? From what you have just
said, it suggests that did not seem to be a particular issue for
them but perhaps you might expand a little bit further on what
you said before.
Mr Faull: As I said, the team on the Joint Review
was composed of Commission officials and representatives of national
authorities, both national data protection and national law enforcement
authorities. The common view of all the participants was that
they had had access to sufficient facts to carry out a proper
assessment of the implementation of the Undertakings and that
is what the report says. Will there be a similar provision in
a new Agreement, that is very much a matter for negotiation with
the Americans, and we have barely started negotiations under a
new set of negotiating directives given to us by the Council only
a month ago, and we have not reached that issue yet. I think it
is fair to say that the Americans found the Joint Review useful,
important, but also extremely cumbersome. It occupied a lot of
their time, and I would not be surprised if they sought in the
negotiations a somewhat lighter form of review in a new Agreement.
That is my impression from what they said during the discussions
of the interim Agreement, but we shall certainly want to have
a proper system for making sure that whatever Agreement is entered
into is properly applied.
Q142 Chairman: There has been reference
to security grounds for a restriction on the Joint Review. In
general, did you get the impression that the Americans were wholehearted
in taking part in this Joint Review?
Mr Faull: Yes, they were, there was no doubt
about that, so much so, I think, that they devoted considerable
resources to doing it properly, engaged lots of their people for
several days on the spot in Washington and at airports, plus all
the preparation which went on beforehand. That is probably why
they want something a little lighter this time because they did
take it so terribly seriously. There may be other ways to make
sure they take it seriously, we will have to look at all of that.
Q143 Baroness D'Souza: If I could
go back to the first question. I understand that once you have
got the information you have got, and I understand also the confidentiality,
that the Americans had found PNR to be extremely useful. I wonder
did you get any information at all about false positives or even
whether they expected to have a great deal more information on
individuals than they got?
Mr Faull: The PNR contain a wide variety of
data, some of which can be misleading or confusing. I think they
would say the more PNR you have, the lower the risk of making
mistakes.
Q144 Chairman: Shall I stop you there
for a moment and welcome your colleagues. It is very nice to see
you here, and I apologise for having started the meeting before
you arrived.
Ms Verkleij: Not at all, we apologise for being
late.
Mr Faull: Cecilia Verkleij is the official in
charge of the PNR file in my Directorate General and Chiara Adamo
is my assistant. We were all in Washington recently for the first
round of the new negotiations, to which we will return later,
and I think Cecilia was in the Joint Review team.
Ms Verkleij: Yes, I had the pleasure of drafting
the report. (Off the record)
Q145 Baroness D'Souza: Could you
say whether your impression was that the Americans expected to
get rather more information than was actually the case?
Mr Faull: Yes, perhaps. There are 34 items in
the list of PNR attached to the current Agreement and not all
of those PNR are always made available because when we fly we
do not always give all that information to the airline. Most of
the time, we understand, airlines send the PNR, or the Americans
take PNR from our airlines depending on whether we are pushing
or pulling, and we will come back to that no doubt, and fewer
than the 34 are actually there for most people on most flights.
Do the Americans want more information? It was the result of negotiation,
there will be another round of negotiation and they may well ask
for more information. Our view at the moment is that the 34 PNR
items are probably sufficient and may even be excessive in number,
and we will certainly at least wish to negotiate very seriously
with our American partners about each individual item of information.
Chairman: Incidentally, I should have
said at the beginning, we have just gone off the record while
you were recapping, but if at any point you want to go off the
record, you are very welcome to and we will ensure that is respected.
Q146 Baroness D'Souza: What I am
interested to know is about the level of mistakes, false positives,
mistaking identities, whether that was greater than they expected
or less?
Ms Verkleij: That is a different issue.
Q147 Baroness D'Souza: It is a slightly
different issue.
Ms Verkleij: It is important that you raise
it but the false positives is the issue of comparing your passport
data with the no-fly lists, the watch lists; with PNR you do not
have false positives.
Q148 Baroness D'Souza: It is only
when you use the two together?
Mr Faull: Exactly. If I am Jonathan Faull—I
will use a very uncontroversial name—and flying to the States
and all my information on the PNR gets there, that can only be
mine because it is way beyond just a name, it is what seat I am
in, my credit card number, who booked the flight, which travel
agent, that really narrows it down. The problem arises if they
have a list of people they want for some reason and a Jonathan
Faull is on that, who happens not to be me because somebody has
written my name down wrong or there are two of us, that is where
a false positive can arise, but it should not arise from 34 maximum
PNR items.
Ms Verkleij: It does not arise from your PNR
because in your PNR your name may be written in different ways.
Therefore, in terms of data quality, your name as appearing in
your PNR is not accurate enough for customs and border protection
authorities, they compare the no-fly list with your name as written
in your passport and that is the match which is being made. That
may result in a mismatch, but it is a different set of data which
the US compares in order to make sure that certain people are
not even allowed to board a plane.
Q149 Chairman: Are there particular
concerns with open-fields' categories of data?
Ms Verkleij: Yes, because they may contain sensitive
information.
Q150 Chairman: The Canadians do not
have those?
Ms Verkleij: No, they do not, they have excluded
them from the list. (Off the record)
Q151 Baroness D'Souza: I still do
not have an answer to what I said about the percentage of false
positives when you put the new databases together, but let us
park that for a while. We have been told that travellers who are
non-US citizens do not have the protection of the data protection
laws but they can apply under the Freedom of Information laws
in the US if they want to know what data is being held on their
account. Do you think this is an adequate and effective means
of address? Are there other ways in which you can challenge the
misuse of data?
Mr Faull: Yes, I do think the current system
with a recent addition, which I will explain, is satisfactory.
First of all, the current Undertakings provided in paragraphs
37 to 42 for a system of redress and access for data subjects,
including, of course, Europeans, so therefore non-Americans, apply
to us, not only to US citizens. A data subject may have access
to his or her PNR data contained in the Department of Homeland
Security databases. He or she may apply to have data rectified,
first to the Department itself and then, secondly, to the Department's
chief privacy officer. The Undertakings provide the data subject
with an additional right of complaint to national data protection
authorities back here in our Member States, and those authorities
may in turn lodge complaints with the United States authorities.
Most recently, the US has introduced a new redress system known
by the acronym TRIP. I am trying to remember what it stands for,
do you remember?
Ms Verkleij: No.
Q152 Chairman: That is the trouble
with acronyms.
Mr Faull: I will find out. We were asked by
a member of the European Parliament whether that system applied
to EU Member State citizens. We asked the question directly to
the Department of Homeland Security and the answer was a resounding
yes. They have set up a dedicated redress system for the Department
of Homeland Security's databases like this one and that definitely
applies and is open to all of us.
Q153 Baroness D'Souza: And it works
within a timeframe?
Mr Faull: Yes, certainly there are time limits.
This TRIP system is a new one, so I am not sure that any assessment
has yet been made of it but I have no reason to think it does
not.
Q154 Lord Foulkes of Cumnock: Mr
Baker of the DHS sent you an email on 11 October and in it he
said, and I quote: "With this letter the US has consulted
with the EU". That sounds a bit peremptory and does not smack
of an equal partnership. Can you tell us what real opportunities
you had to make comments on this before it was added?
Mr Faull: Perhaps he should not have phrased
it quite that way. What he meant was the letter followed, and
it did, extensive discussions and consultations. This may be an
American usage of English, I do not know, but he wanted to record,
as he did in that email, that we had had extensive discussions
and consultations on the specific issue, which we had.
Q155 Earl of Caithness: Let us stick
with Mr Baker for a little bit, shall we, in that in effect he
was giving a unilateral explanation of how the US authorities
intend to interpret the Agreement. Should not the terms of the
Agreement be clear enough so there is no doubt about their meaning
and how they should be interpreted?
Mr Faull: In an ideal world agreements would
be crystal clear and you would never need to have other pieces
of paper interpreted. What we did was when the Court of Justice
struck down the first PNR Agreement we went back to our American
friends and said, "We need to put something back in place
using a different legal basis". We had to explain to them
our wonderful world of pillars and all of that, which we did,
and the Americans said to us, as they were perfectly entitled
to do under the Undertakings, that various things had changed
in the law of the United States in the intervening period of which
they wanted us to take account in the way in which the Undertakings
were understood. We, and when I say "we" it is important
to remember because we are acting under the European Union Treaty,
therefore the third pillar, and it is the Presidency in the lead
on negotiations assisted by the Commission so we,—the Presidency
at the time Finnish, now German for the new negotiation—and
the Commission received negotiating directives from the Council
which essentially asked us to maintain the status quo, not to
change the Undertakings, and to conclude the Agreement on a new
basis. That was what we were asked to do.
Q156 Chairman: You mentioned that
you have just been to Washington, were you chaired by the Presidency?
Mr Faull: Yes.
Q157 Chairman: They were in charge
of the negotiation, were they?
Mr Faull: Yes, always, absolutely
Q158 Chairman: I am sorry, I interrupted
you.
Mr Faull: We said to the Americans, "The
Undertakings are untouchable. The Agreement should simply be recast
in the new legal framework", but they said, and I think we
had to recognise some force in this, "Things have changed
in Washington in the last couple of years". This was 2006,
the Agreement was 2004. It is true that the United States had
introduced a number of new items of legislation and, above all,
had enshrined in law, both in an act of Congress and in an executive
order by the President to the Executive Branch, of which the DHS
is part, of course. The change can be summed up as the introduction
of what they call an "Information Sharing Environment"
ISE. In America part of the Department of Homeland Security is
called ICE, and I forget what that is.
Ms Verkleij: That is a special branch.
Mr Faull: Customs?
Ms Verkleij:. ICE is US Immigration and Customs
Enforcement.
Mr Faull: The Information Sharing Environment
is ISE. What is ISE? ISE is, I think we can understand this, one
of the principal lessons that the US authorities have learned
from 9/11 and from the 9/11 Commission Report, which is that intelligence
information should be shared between all the law enforcement agencies
that are likely to find it useful. The criticism made of the situation
which prevailed until 11 September 2001 was an excessive compartmentalisation
of intelligence and law enforcement agencies, an issue not unknown
in some of our own countries, and no doubt lessons have been learned
on this side of the Atlantic as well. They explained to us in
Washington that the main lesson they learned was you must share
information. If information enters the US system, the US Government,
a US agency in one place, it has an obligation to make sure that
all the other members of what is a rather large community and
a rather large body of agencies at federal and state level in
the United States should also know. I think that is a matter of
fact. That law was enacted. The President gave the orders to the
Executive Branch to follow this very carefully. Meanwhile, it
has to be acknowledged that our PNR Undertakings proceeded on
a very different basis, that one part of a government department,
the Department of Homeland Security's Customs and Border Protection
Department, should receive the PNR and, in principle, should not
show them to anybody else.
Q159 Chairman: They are protected.
Mr Faull: And only under very specific rules,
in very specific circumstances, should they be able to share them
with other people. The Americans said to us, "Look, things
have changed over here. We need to have this reflected",
and we said, "We cannot change the wording of the Undertakings,
but the Undertakings do provide, which explains Mr Baker's email
in part, that following consultation and discussions the way in
which the Undertakings are interpreted and applied may be reviewed
by the parties in the light of changes in the law or policy of
one of the parties" and, to be fair, I think that has happened.
What we agreed was we would discuss the interpretation of the
Undertakings in the light of these recent intervening events and
that those interpretations, which were agreed largely amongst
us, would be recorded in an exchange of letter. Mr Baker wrote
to me and to my counterpart in the Finnish Ministry of Foreign
Affairs and on behalf of the Council we wrote back saying, "We
acknowledge this. Thank you very much". All of that is published
in the official journal of the European Union and that is the
basis from on we operate today.
|
