Dr Chris Pounder, a data protection specialist with Pinsent
Masons, the law firm behind OUT-LAW, warned that the Commission's
latest proposal still leaves it open to basic challenges. "In
effect, all the Commission has done is to ensure that those who
object to the Passenger Name Records (PNR) deal have to start again
in the Courts, possibly with a Human Rights case."
The European Commission had previously agreed a deal with the US
to allow the automatic transferral of 34 pieces of data to US
authorities by every airline flying from Europe to the US.
Following complaints by the European Parliament the European Court
of Justice ruled that the legal structure of the deal was
unlawful.
The European Commission has just announced that it will start
putting together a new deal with a different legal structure but
the same essential content, saying that the Court had not
criticised the content of the agreement. In fact, the court never
considered the content because the legal structure was flawed.
A
Commission statement released on Monday claimed: "The
content of the current Agreement has not been criticised by the
Court and should therefore continue to offer the same level of
safeguards regarding the legal certainty for air carriers, the
respect of Human rights and the purposes for which PNR data may be
used."
Dr Pounder expressed concern.
"The Commission's interpretation of the Court's judgment is
arguably economical with the truth," he said. "Because the Court
ruled that the agreement was unlawful, it did not consider the
substantial data protection issues which have been raised by
the European Parliament, the Working Party of European Data
Protection Commissioners and the European Data Protection
Supervisor. These privacy defects will still remain if the
Commission and the Council of Ministers agree to install the same
agreement under different administrative procedures".
Pounder continued: "In effect, all the Commission has done is
ensure that all those who have objected to the PNR deal on privacy
grounds will have to start again in any legal proceedings. Since
legal action takes time and money, the Commission's policy is to
boot any controversy into the long grass".
Opponents of the agreement have argued that greater privacy
needs to be balanced with the security needs of the US, and have
looked for limits on who can access the information provided and
for what purposes. Amongst other things, opponents have looked for
the number of pieces of data to be reduced from 34 to 19.
The Commission has until the end of September to frame a new
agreement. "With the adoption of these initiatives only two weeks
after the court ruling, the Commission underlines its willingness
to fully respect the court's judgment," said the Commission
statement.
