Examination of Witnesses (Questions 160-179)
MR JONATHAN
FAULL AND
MS CECILIA
VERKLEIJ
22 MARCH 2007
Q160 Lord Marlesford: My question
follows on from that. We have been told that data mining and data
profiling have been used by the US on the basis of the PNR and,
for example, for its Automated Targeting System. Do you regard
this as lawful and legitimate use of PNR under the Undertaking?
If not, what are you doing about it, if anything?
Mr Faull: The purpose of collecting PNR data
is to identify potentially high risk passengers on the basis of
certain characteristics or a combination of characteristics and
to that extent there is what is often called "profiling"
taking place. They are looking for patterns of behaviour. It does
not mean that anybody is a criminal or even necessarily suspected
of committing a crime, but they are building up a pattern about
the passenger behind the Passenger Name Records and then cross-checking
that information with other sources of information. I do believe
that is lawful and is in compliance with the Agreement and Undertakings.
Q161 Lord Teverson: The system at
the moment is a pull system from the United States, whereas I
think it was intended that it should be push. Where has that got
to at the moment agreement-wise? I think the barrier was a technological
one with the airlines. Is that likely to be solved by the time
this new Agreement comes into effect?
Mr Faull: The situation now is already mixed,
there is pushing and there is still pulling as well. Some European
airlines have switched to a push system because they have got
the technical interfaces in place between their computer systems
and the Department of Homeland Security's computer system. Others
are still in the stage of developing and testing themselves and
with DHS their push system. The Americans say they are perfectly
happy to go to push. There is nothing legal or ideological here,
it is a purely technical question. The question is how can we
get the data reliably from one place to another? We attach importance
to moving to push as quickly as possible because it is for our
airlines to comply with the law as long as we can arrange things
here in such a way that they can comply with US law without falling
foul of European data protection law, and that is the purpose
of all of this. We would rather that be the situation than the
long arm of the American law stretching across the Atlantic into
our computer databases and pulling the information out. Therefore,
it is widely agreed, and we are under considerable pressure from
the European Parliament on this, that push is the way to go. What
we cannot do, of course, is arrange the technical work which has
to be done by computer specialists, no doubt, at either end. The
people designing the computer interface also need an absolutely
secure regulatory environment because they need to know what information
they are providing, what information they are not providing and
what filters have to be put in. For example, we are very insistent
that sensitive personal data relating to religion or ethnic origin
or medical conditions be filtered out, those filters have to be
built in. All that is being done and there are talks going on
all the time. The European airlines have been in to see us recently,
individually and through their various associations, and I understand
we are not very far from putting most, and ultimately all, European
airlines into a push system. I cannot tell you exactly when this
will be done.
Q162 Lord Teverson: Presumably, to
a certain degree, if something like the National Security Agency
really wanted to know, it has the means of getting into these
systems anyway, does it not, outside all of this within a context?
Mr Faull: I would not know. I hope that airlines'
computer reservation systems are secure.
Lord Teverson: Unhackable.
Q163 Earl of Caithness: Data transferred
under the current Agreement attract a data retention period of
three and a half years. Mr Baker points out that the Agreement
will expire before the end of three and a half years and that
questions of when to destroy data collected in accordance with
the Undertaking will be addressed as part of future discussions.
Should not data transferred on the understanding that it will
be retained for three and a half years be destroyed after that
period?
Mr Faull: It depends what rule is finally provided
for. Of course, if it is a rule which says the data shall be retained
for X, then after X they should not be retained, which means they
should be destroyed. The three and a half year period was an issue
which, as Mr Baker said, did not need to be addressed in the interim
Agreement for the simple reason that no three and a half year
period was going to expire during the life of the interim Agreement.
Of course, that does not solve the problem for the longer term,
and there is no doubt that it will be one of the difficult areas
for negotiation in the new Agreement. The Department of Homeland
Security has not hidden its view from us that it finds three and
a half years too short a period because they believe that PNR
data may still prove useful thereafter. Where thereafter ends
is a matter which we will be negotiating, and I imagine there
will be some rather difficult discussions on this issue before
we find the right balance between the needs of security and law
enforcement, for which, no doubt, information is the basic raw
material, and the needs of data protection, which require that
data not be kept for any longer than is absolutely necessary for
the legitimate purpose for which they are collected.
Q164 Chairman: Can you recall for
us, why three and a half years?
Ms Verkleij: I would almost say it was by accident.
The US started with 50 years at the time and that went down to
seven, the Commission just wanted one year and then the compromise
between seven and one year was three and a half years. The idea
was the first Agreement would last three and a half years and
the data retention would be as long as the first Agreement. Also,
the idea was that the three and a half years should be used in
order to gain a lot of experience and then come back and renegotiate
and see whether three and a half years would still be the right
period, the number of data, so all these things will be back on
the agenda again.
Q165 Baroness D'Souza: As you say,
you are going to be negotiating this, but could you say something
more about the rationale upon which a decision will be reached
eventually? What evidence is there that data should be kept two,
three, ten, 50 years?
Mr Faull: First of all, I think there are data
and data. There are data which are in active live use in an investigation
and I think everybody agrees that they should not be destroyed
as long as they are needed for that particular investigation.
When the investigation is finally and irrevocably over the information
may not need to be kept anymore or should not need to be kept
anymore. That is not controversial, what is controversial is the
duration of conservation of data which does not seem in isolation
to be particularly interesting but may prove useful one day because
someone is under investigation, of whom very little was known
before, and you want to reconstruct a pattern of that person's
life, the clean skin issue, for example.
Q166 Chairman: Sorry, what is that?
Mr Faull: I thought that was widely in use in
Britain.
Chairman: We do not understand you.
Q167 Baroness D'Souza: We are longing
to know!
Mr Faull: My understanding of clean skin, but
I only get this from newspapers, is it is British police usage,
no doubt, meaning someone with no police record at all, not known
to the authorities in any way, who suddenly features in a terrorist
attack and has a clean record. In that event, everybody immediately
wants to reconstruct that person's life.
Q168 Chairman: Everything known about
them.
Mr Faull: Exactly. What can we find out about
this person? One of the interesting things people are usually
looking for is where has that person been travelling and therefore
PNR come into the picture. If PNR are discarded after three and
a half years—say the American law enforcement people—we
may be missing important tricks. Would seven years be enough or
70 or 50, whatever they started with, I do not know. To answer
your question directly, the rational basis on which a decision
will have to be made on this will be finding out all we can about
the genuine needs of law enforcement and counter-terrorism investigators
based on their past experience and, as a starting point, taking
that the period must be the shortest reasonable period possible
to allow them to do their work properly. That is abstract, of
course, and it will come down to a figure in negotiations and
I do not know today what it will be.
Q169 Lord Marlesford: Following that
up, it sounds to me as if what you are really saying is data should
be kept for as long as is operationally necessary for the purposes
of fighting crime and terrorism. If that is the case, it seems
to me pretty absurd to start fixing dates.
Ms Verkleij: Yes, I see what you mean.
Mr Faull: It can be done that way. It can be
written down in that sort of abstract way without putting a period
on it. But the data protection systems we have usually require
or at least have had the habit of putting numbers on things because
people need to know. In a police station the people in charge
of a particular database in a government department need to know
precisely what to do, someone has to give a clear instruction.
If you negotiate a rather broad form of words in an international
agreement of this sort, which no doubt is a more accurate reflection
of what we need, striking the balance, as long as possible for
law enforcement and as short as possible for data protection privacy
concerns, what are the poor people at the coalface supposed to
do? Somebody has to give them a number at some stage. It has been
thought so far that it would make more sense to try and agree
a number in the first place, perhaps with exceptions. Cecilia
Verkleij tells me that for Europol's database system, which one?
Ms Verkleij: I do not know for which information
data they are using it.
Mr Faull: They have a review every three years,
and on the basis of a more abstract form of words someone has
to decide whether to delete or not delete.
Q170 Chairman: Basically, as with
so much on this subject, it is a question of judgment or balance
as to what is, (a) necessary and (b) proportionate, is it not?
Mr Faull: Yes, entirely.
Q171 Lord Teverson: If you take the
clean skin example, surely on that you would want to know, exactly
as you say, about bringing together the whole life of that person.
Is that not done in a completely different way? Is that not done
on much more co-ordination by security agencies because by then
you have got a name, have you not, so if the problem was in the
United States they would come back to European agencies and find
out through law enforcement because a PNR profile would only give
a very small part of that, would it not?
Ms Verkleij: Yes, but an essential part.
Q172 Lord Teverson: Surely it is
much more effective to do it on all those other connections which
go on rather than through this system?
Mr Faull: That would happen but if the data
were just not available anymore they would be very limited in
what they could find out to share with each other. Yes, of course
you would have a name but PNR tells you a lot more than a name.
PNR tells you with whom the named person has been reserving flights,
next to whom he or she has been sitting on planes regularly, where
they have been flying to and from, et cetera.
Q173 Lord Teverson: I understand
all of that, but what I am saying is that information is much
more comprehensively held within the airline, within wherever
that is held?
Mr Faull: No, they delete as well.
Ms Verkleij: The airline deletes your information.
Lord Teverson: The issue is them not
deleting their data here, not keeping it over in the United States
where it really only will be partial because a lot of those fights
that person might have taken might be on other airlines, do you
see what I am saying?
Q174 Lord Foulkes of Cumnock: They
get rid of it.
Mr Faull: The airlines delete it almost immediately.
The airlines' interest in the passenger is commercial. Once you
have got on the plane and landed safely on the other side they
do not care about you anymore and they delete because you have
paid your bill. Why are they interested in your credit card number?
Only because they want to get the money from you.They have got
the money and they have delivered you to your destination. If
you are a frequent user of their services and they need to know
more about you, you have got a frequent flyer card and information
will be in there, that is separate, otherwise they clear their
computer and move on to the next one.
Q175 Chairman: Surely the answer
to Lord Teverson's question, as indeed he has suggested himself,
is that the national intelligence and security and police agencies
can find out very quickly by other means whether the clean skin
person is actually as clean as suggested?
Mr Faull: Not necessarily because they are looking
for the same information. If it is just not there, it is just
not there, whether you are in Washington or in London.
Ms Verkleij: I think you should bear in mind
that PNR is a very specific set of data which they may not get
otherwise. It is a small part of a jigsaw puzzle but it helps
them construct the jigsaw puzzle. Sometimes without a PNR they
cannot make the link between this set of information and that
set of information.
Mr Faull: Known associates, known travel parties.
Ms Verkleij: That may make a difference.
Q176 Lord Foulkes of Cumnock: I understand
from what you said that you agree with Lord Marlesford that it
would be unfortunate if someone like the shoe-bomber was missed
because of an arbitrary date put on deleting information and that
information was no longer available, is that right?
Mr Faull: Unfortunate would be an awful understatement.
If any bomber were missed, of course and, therefore this is an
extremely difficult subject and we have to get it right.
Q177 Lord Foulkes of Cumnock: You
said that this retention period is going to be one of the difficult
areas for agreement, although it sounds as if you have some sympathy
with the American point of view, but our Minister told us that
there is going to be a number of areas which will be difficult
and the Americans are going to be pressing for fairly substantial
changes in the Agreement. Would it be helpful to mobilise Member
States to help you in any way in these negotiations?
Mr Faull: Of course, in negotiating with the
United States the Union benefits greatly from the united strengths
of its Member States. We would hope very much that all Member
States would press, in their bilateral relations with the US Administration,
for the positions which we are defending on their behalf. We have
a unanimous—it has to be unanimous—mandate from the
Council and that circumscribes what we do and gives us our marching
orders, so we expect all Member States to be in there behind us
at all times.
Q178 Earl of Listowel: When these
important negotiations are concluded, will the European Parliament
and national parliaments have an opportunity to comment on the
draft Agreement or will they first see it after its signature,
as happened with the current Agreement?
Mr Faull: The legal position is that using the
procedure of the European Union Treaty there is no consultation
of the European Parliament or of national parliaments before the
Agreement is concluded. What we have agreed, and what we did previously,
and what we have agreed to do again informally, is to provide
throughout, on our part and on the Council Presidency's part,
a constant flow of information to the European Parliament, and
I am sure that ministers will want to keep their parliaments informed
in national capitals as well. I personally, with the Council Presidency,
report regularly to the Committee of Permanent Representatives,
so the Member States are kept informed through that channel. After
all our discussions in Washington we debriefed the embassies of
the Member States on the spot. Even though the legal framework
is not very parliament-friendly, to be frank, we go out of our
way—I hope people see this—to keep our Parliament
informed here in Brussels and in Strasbourg and I am sure Member
States do likewise as well.
Q179 Lord Marlesford: At the moment
it seems all this information flows one way to America. Should
we be aiming to change that to have a reciprocal flow of information?
Mr Faull: The Commission's view is that it would
make sense to have a PNR system for ourselves in the European
Union on the basis of which we would then have very good grounds
for saying to our American partners, "This must be completely
reciprocal. We have our PNR system, you have yours". We are
at fairly early stages still in assessing whether and what to
propose by way of a European PNR system. I think it should be
realised that the Americans see planes flying into their territory
as a potential threat.
Q180 Chairman: And over?
Mr Faull: And over. Whereas, I am not sure that
all European governments see planes flying into their territories
from North America in quite the same way. Therefore, there is
a lack of symmetry between the public perceptions perhaps, but
also official perceptions, of what is needed to provide for national
security. I am not saying that anybody has made up their minds
definitively and we have not and we have not made a proposal yet
but, I have to say, I do not sense any great enthusiastic demand
among Member States for creating a European PNR system. Member
States that need such information have set up national systems
which may not be called PNR but have similar objectives and I
hope results. We are thinking about whether the whole of the EU
should have one but until it does we cannot operate on a reciprocal
basis with the United States. They want this information, they
have enacted laws requiring it and we have to find a way to enable
our airlines to comply with foreign laws, the purposes of which
we fully understand and respect, without falling foul of our data
protection laws.
Q181 Chairman: Would you expect the
European Parliament to have an active interest in reciprocity?
Is it an issue for them?
Mr Faull: Yes, it is. They believe, and I think
in general they are right, that our international relations should
be governed by reciprocity and we should not do things for others
where others will not do them for us. That all makes sense in
an abstract way but, as I said, as long as we do not have a PNR
system there is nothing to be reciprocal about. What is important,
and this comes back to a point I made earlier, is the intelligence
work, the analysis made of PNR data, particularly in relation
to transatlantic travel, should be of benefit to our security
as well as to theirs. Afterall, a plane between here and the United
States has our citizens on it as well as American citizens, our
security interests are absolutely identical in that respect. If
we can show, and I think we can, the European Parliament, for
example, that European security is also benefiting from this arrangement
I think the European Parliament will accept that argument.
Earl of Caithness: I have two questions,
one is the Canadian one. Is there any reason why we cannot have
a shorter Agreement like the Canadians have? Does the fact that
our Presidency leads negotiations and the Presidency changes every
six months weaken our negotiating position?
Q182 Chairman: I am sorry, we have
not given you notice of this question.
Mr Faull: It is a good one though. There is
no reason why the Canada Agreement should not be a reference point,
a starting point, but each country is different. We do not expect
the United States to have exactly the same security, law enforcement,
privacy laws or concerns as Canada. They are similar countries
in some ways and different countries in some ways, as we all know.
It is not just a question of toping and tailing, crossing out
Canada, putting in the United States, I think that would be different.
We are well aware of the Canadian Agreement and so are the Americans,
of course, and it will be one of the items which we will refer
to in the discussions when we are looking for solutions, but they
will not be identical because of the different history, structure
and outlook of the two countries. The change of Presidency: what
I can say so far is that in the successive and very different
presidencies which we have worked with on this, we have always
found excellent co-operation and a high degree of professionalism.
We provide continuity and this is one of the Commission's roles,
in fact, to assist each successive Presidency in doing this and,
no, it has not been a problem. We have had presidencies with,
the current one for example, lots of direct flights to the United
States, a very obvious and real concern for the subject matter.
The Finnish Presidency, I cannot remember if there is a direct
flight between Helsinki and the US, maybe once a week or something.
Ms Verkleij: I do not think so.
Mr Faull: A big country and a small country
and so on, one can think of all sorts of ways of characterising
the Member States. Perhaps, surprisingly, it does not make much
practical difference to our work. They are highly professional,
they put good teams of people on the case, it reflects a wide
range of government departments: we have had foreign ministry
people, interior ministry people, justice ministry people, the
embassies on the spot in Washington have been very helpful in
all cases, so it works well. If you are asking me whether more
broadly the Commission is in favour of the ideas expressed in
the draft Constitutional Treaty about the way the Presidency of
the Union should be executed, well, of course, the Commission
is in favour of the Constitutional Treaty signed by all Member
States but not yet ratified by all.
Q183 Chairman: This is quite a difficult
question to answer, but do you expect the Portuguese Presidency
to have this subject high on their agenda?
Mr Faull: We were in Lisbon recently to start
preparing for the Portuguese Presidency and they were very keen
that this be settled by the end of June but, of course, they said,
as one would expect, if that were not the case they would do their
very best to bring it to fruition. They would like to see it out
of the way under German Presidency.
Q184 Lord Teverson: We have the US
and the Canadian Agreements, are we likely to have a whole string
of these agreements because the principle having been set, that
the EU negotiates on behalf of all its airlines, then are we going
to have a Brazilian Agreement at the end of the day? Certain countries
like China or Russia might be more—
Mr Faull: They do not have PNR systems as such.
The one country keen to negotiate an agreement with us at the
moment is Australia, and we will come to Australia I hope in the
not too distant future. The real problem at the moment is the
United States and we will do that first.
Lord Foulkes of Cumnock: When I went
in to Australia they asked if I had a criminal record and I said
I did not think it was still required!
Q185 Chairman: Can I ask you one
final factual question, do you know how many people there are
on the no-fly list?
Mr Faull: I do not offhand.
Q186 Chairman: Really my question
is whether you know it rather than how many there are.
Mr Faull: I have seen it. The latest figure
I have is 30,000.
Q187 Baroness D'Souza: 30,000?
Mr Faull: 30,000 entries on the no-fly list.
Q188 Baroness D'Souza: That is far
more than I thought.
Ms Verkleij: But they have different lists.
Q189 Chairman: Is that public knowledge?
Is it usable?
Mr Faull: Can we check that?
Q190 Baroness D'Souza: When you say
there are different lists, what do you mean by that?
Ms Verkleij: They have a watch list, a no-fly
list, which contains the names of those people who are considered
terrorists.
Q191 Baroness D'Souza: That would
be completely independent of PNR?
Ms Verkleij: Yes, it has nothing to do with
PNR.
Mr Faull: It has nothing to do with PNR but
PNR are checked against it.
Q192 Baroness D'Souza: But do we
know the size of the watch list?
Ms Verkleij: That was what it was at the time,
it changes every day.
Q193 Baroness D'Souza: You are giving
me no-fly, but the watch list, does that automatically mean no-fly?
Ms Verkleij: Yes, normally the two are used
together but they have a second list and that list contains the
names of people who are considered to assist terrorists.
Chairman: Director General, thank you
very much indeed.
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