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.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.