«A different kind of war» - US Homeland Security chief to Civil Liberty MEPs

The US Secretary of Homeland Security Michael Chertoff met MEPs on Parliament’s Civil Liberties Committee on Monday to discuss civil liberties and the war on terror. In particular the contentious Passenger Name Record (PNR) agreement on the transfer of data on airline passengers who fly from Europe to the US. The accord has been central to the security vs privacy debate. Mr Chertoff said PNR «would have identified 11 of the 19 9/11 hijackers» and told MEPs that we face «a different kind of war».

Mr Chertoff had been invited following a recent visit by MEPs to the US Congress to discuss the fight against terrorism.

In 2004 the EU concluded the «Passenger Name Record Data Transfer» agreement with the US whereby airplanes flying from Europe to the US would supply a range of data about each passenger.

In particular the US is interested in up to 34 pieces of information on each and every passenger provided in ticket reservation databases. Depending on how you book your ticket this can be information such as your credit card number, email address and your home address. It can even apply to you if you ask for a special meal although data which may reveal the race or religion of passengers is not supposed to show up.

Chertoff: «life is the liberty on which all others depend»

The move to collect this kind of data was a direct response to the September 2001 attacks on the US. The US has always maintained that they are vital tools in the war against terrorism. Indeed, speaking to MEPs on Monday Mr Chertoff said that such data would have identified 11 of the 19 9/11 hijackers. He said this would have come at «a minimal cost to civil liberties».

Mr Chertoff was asked specifically by Greek PSE member Stavros Lambrinidis what kind of data the US collects. The Homeland Security chief replied that it included the name, surname and passport number of people but also frequent flyer number, phone number, e-mail address and credit card number. Mr Lambrinidis later spoke of the differing perceptions across the Atlantic saying that there is a mistaken belief in US that Europe doesn’t care so much about security, and in Europe that the US doesn’t care so much about fundamental rights.

However, the need for strong measures to deal with terrorism was implicit in Mr Chertoff’s remarks. He said terrorism was an «ideological threat, a totalitarian vision imposed through violence». As to the civil liberties questions that have arisen in the fight against this he told those present that «life is the liberty on which all others depend».

Effectives of data challenged

Dutch Liberal ALDE member Sophia in ´t Veld challenged the effectiveness of the data saying that before 9/11 massive amounts of information was available but it was insufficiently used and shared. She later said that protection of EU citizens’ data is not guaranteed by US law, but just by an administrative rule. To this Chertoff answered that «each civilized country should respect others’ privacy laws».

Herbert Reul of the European People’s Party and European Democrats praised PNR as a very precise project, said that time was running out to solve the problem.

The European Parliament’s Civil Liberties Committee has long held misgivings about the privacy and confidentiality issues raised by Passenger Name Record agreement.

European Court rules against PNR in 2006

The European Parliament took the case to the European Court of Justice who in May 2006 invalidated the agreement saying it lacked an «appropriate legal basis». In particular they ruled that the EU Data Protection Directive, which the Council and the Commission had used as a reference point, did not apply to data collected for security.

When negotiating the agreement, the Commission had based it on the body of EU law which deals with the internal market (as it had commercial implications). The Court believed that it should lie within the sphere of cooperation between member states (with the «third pillar» of responsibilities).

To keep the planes flying a short term international agreement was put in place from October 2006 to July 2007 while a new agreement is negotiated.

In July last year MEPs on the Civil Liberties Committee called for the Council to give the Parliament full co-decision rights on PNR issues so they can ensure future agreements respect data safeguards. Such a move would require the use of the «passerelle» clause of the EU Treaty whereby the Council would in future share decision making in this area between it and the Parliament.