In a just-published report on the information airlines pass to
US authorities, known as passenger name records (PNR), the Lords
said that a "better balance" needs to be struck between privacy and
security.
But though it was critical of some elements of PNR deals in the
past, the Lords' European Union Committee said that the exchange of
PNR data is a necessary element of counter-terrorism policy.
"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," said the report.
But the Lords said that data collected must be tightly
controlled, and that any data collected must be used properly,
which means only using it for the purposes for which it was
collected in the first place.
"[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," said the report.
PNR data has been handed over by airlines to US authorities
since soon after the terrorist attacks in the US of September 2001.
Under an agreement between the US and the European Commission, 34
pieces of information on every passenger are transferred.
That deal was the subject of a successful legal challenge by the
European Parliament, and an interim deal has been put in place
while a new agreement is negotiated before a July deadline.
European and US authorities put an interim deal in place because
their clashing data protection cultures make a permanent deal
extremely difficult to agree. The Lords have warned against another
stop gap, though. "In our view the worst possible result of the
negotiations would be an agreement to extend the current Interim
Agreement," they said.
As well as limits on the use of data, the Lords also insisted
that data be deleted after it has served its original purpose. "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," they
said.
The Lords also said it was vital that any deal is not a
bureaucratic compromise agreed by civil servants in the European
Commission and the US. It must be approved by the people's elected
representatives both in Brussels and London, they said.
"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,"
said the report.
The Lords said that the UK government should ensure that any
agreement is accountable to the UK electorate. "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,"
said the report.
The Committee expressed reservations about PNR systems because
of the consequences of errors, and even the consequences of an
over-reliance on the system without errors. The Committee
highlighted the case of IT consultant Maher Arar.
Born in Syria, Arar became a Canadian citizen when 17. He was
detained at JFK Airport in New York and held for 10 months in a
tiny jail cell where he was beaten, tortured and forced to make a
false confession. On his return to Canada a judicial inquiry found
that there was no evidence Arar had committed any offence or was a
security risk.
"This of course is an extreme case, but it is an example of what
can happen when the right data are wrongly used," said the report.
"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."
