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EU: Commission Plans December Deadline In Passenger Data Row With U.S.

The European Commission today repeated its call for a quick and mutually acceptable solution in the simmering row with the United States over treatment of airline passenger data handed over to U.S. authorities by EU airlines. Commissioner Frits Bolkestein today reiterated the EU position that although the bloc understands U.S. security concerns, the way U.S. authorities process the passenger data falls short of the privacy standards enshrined in EU law. He warned the U.S. will have "until Christmas" to address EU concerns.

Brussels, 9 September 2003 (RFE/RL) -- Addressing the European Parliament's Committee on Citizens' Freedoms and Rights this morning, Frits Bolkestein said the United States has done very little to appease EU concerns on an issue where, "fundamental rights" and "the EU's highest good" are at stake.

He said the European Commission remains dissatisfied with the way U.S. border and customs authorities treat the airline passenger data handed over by EU airlines.

This means that for now, EU airlines releasing passenger data to U.S. authorities remain in legal limbo. When the EU authorized the procedure in March, it did so on the assumption that the U.S. side will put satisfactory safeguards in place. Until this becomes the case, the airlines remain vulnerable to sanctions by EU member states for violating privacy laws.

On the other hand, should the airlines withhold the data, U.S. authorities may threaten them with fines and the possible withdrawal of landing rights in the United States.

Bolkestein said today this situation cannot continue.

"It is clear that the present situation -- which is legally fragile at best -- cannot be allowed to continue. The Commission is fully aware of this. It is equally true -- and I am confident that members of [the parliament's] committee [on citizens' rights and freedoms] who have been following this matter closely since February, share my analysis -- that there are no easy or 'perfect' solutions," Bolkestein said.

The situation persists despite the fact that the United States has had access to EU passenger data since 5 March this year and has repeatedly promised to address pertinent EU concerns.

Bolkestein said the EU is "solidly" behind the United States in the need to combat terrorism, and would remain "realistic" in meeting other countries' security concerns. He noted that Canada and Australia have made similar requests to the United States, adding that some EU member states are also reported to be considering similar measures.

Bolkestein said broader EU-U.S. relations were also an important "strategic" consideration. But, he said, despite some token concessions, the U.S. record in meeting core EU demands has been "disappointing."

He reiterated the four remaining fundamental "shortcomings" the United States is yet to address. "Firstly, there is purpose limitation. The United States do not want to limit their use of PNR [Passenger Name Record] data to the fight against terrorism, but want to cover, and I quote, 'other serious criminal offenses' and have not so far been prepared to narrow this further."

Secondly, Bolkestein said, the United States requires 39 different PNR elements, which he said "is hard to regard as proportionate to the purpose."

Besides credit card numbers, U.S. authorities also have access to such personal particulars as phone numbers, email addresses, "frequent flyer" program details, luggage weight, and "general remarks" recorded by airlines, which could contain information about a passenger like incidences of drunkenness, disorderly behavior, or simply his or her appearance.

The EU's third objection concerns the long data storage periods requested by the United States. Although the initial demand of a 50-year retention period has been whittled down, the United States still insists on keeping the data for six to seven years.

Last, but not least, Bolkestein said, even the efforts the United States has made so far are not guaranteed to be implemented.

"Fourthly, the insufficient legal 'bindingness' of U.S. undertakings -- and hence our insistence, if rights are not actionable before U.S. courts, on independent extrajudicial redress mechanisms. These are the four shortcomings in the view of the European Commission, which so far have not been addressed in a satisfactory manner," Bolkestein said.

Bolkestein said the EU must decide by Christmas whether the negotiations with the United States can be regarded as successful.

Bolkestein rejected calls from some MEPs (Members of the European Parliament) to rigidly apply EU privacy laws, saying the EU must not "ride roughshod" over the legitimate interests of its airlines, which would bear the brunt of the U.S. reaction.

Rather, he said, the EU's best hope appears to be a bilateral agreement with the United States that would "ensure the highest achievable protection for EU citizens" with "narrowly targeted" exceptions.

Bolkestein also discounted a suggestion from one of the MEPs to apply tit-for-tat measures to U.S. passengers arriving at EU airports. He noted U.S. authorities would "have no quarrel with" providing the EU with equivalent data.

He did promise, however, to give thought to the suggestion mooted by a number of MEPs that airlines should issue EU passengers with information on how their personal data can be used by U.S. authorities.

Bolkestein said national data protection authorities of the individual member states could decide to act against airlines that provide the United States with passenger data. He said Italy is due to take a formal decision on the current practice on 12 September.

Bolkestein said he hopes to discuss the issue further with the deputy head of the U.S. Homeland Defense organization, William Asa Huthinson, when the latter visits Brussels on 22 September.