In the face of the restrictive landmark ruling by the European Court of Justice (ECJ) on screening of airline passenger data, EU countries are trying to square the circle. The crux from their point of view: According to the Luxembourg judges, the transmission and processing of so-called Passenger Name Records (PNR) should only be permitted for flights within the EU if there is a “real and current or foreseeable terrorist threat” in a country of the community consists. Most of the member states do not want to put up with this.
The former Czech presidency of the EU Council of Ministers asked national governments’ opinions on the subject in the autumn. According to her, it would be easiest “if all or most of the member states” could credibly assure a court that they are more or less permanently confronted with the extensive threat mentioned. However, most EU countries do not want to trick that crudely, as can be seen from the answers now published by the British civil rights organization Statewatch. However, some of the statements dated October do not stop short of such a step.
What the EU countries want
The goal of fulfilling the unwelcome verdict pro forma while maintaining the ability to collect bulk data runs through several of the classified submissions. Austria, for example, is proposing a new EU directive: “From an operational point of view, this could best be achieved through a binding legal act in the form of a PNR regulation.” But of course “all data protection regulations would have to be observed”. A new legal text should also “not serve as a means of circumventing the ECJ ruling”.
“Belgium fully recognizes the importance of collecting PNR for flights within the EU,” underline the Belgian authorities. “It calls on Member States to consider all options and solutions to comply with the ECJ ruling on PNR without losing vital traveler information.” Finland supports Belgium’s request for the establishment of an expert working group at Council level. This should “be entrusted with the development of a risk assessment methodology and its implementation” so that EU countries “can work together to justify the need to collect information for a large proportion of flights within the EU”.
Elevate but not process?
According to the government in Paris, it is not an option for the French authorities to record only part of intra-European flights in the future: “Any restriction would impair the usefulness of collecting PNR.” France therefore proposes to “distinguish between the collection and processing of data”. In this way, all PNRs from intra-EU flights could be collected, but only a selection of them would then be evaluated. In principle, the entire travel spectrum must be covered, since terrorists and criminals “are experts in avoidance strategies”. Contrary to the ECJ requirements, PNR should also be stored for a further five years.
Germany interprets the judgment in such a way that it is up to the member states to assess on their own whether there are “sufficiently valid reasons” for assuming the threat described by the court. It is unlikely “that a permanent extension of the assessment would meet the requirements of the ECJ”. Above all, his decision raises the question of “how the member state confronted with a terrorist threat can process such data for a limited period of time”. In this country, the administrative court in Wiesbaden recently stopped the sky dragnet search practiced by the Federal Criminal Police Office (BKA) because it led to “total surveillance of all flights”.
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