European Commission adopts an EU external strategy on Passenger Name Record (PNR)

The European Commission adopted today a package of proposals on the exchange of Passenger Name Record (PNR) data with third countries, consisting of an EU external PNR strategy and recommendations for negotiating directives for new PNR agreements with the United States, Australia and Canada. The Commission clarifies that the general criteria outlined in this communication are a minimum standard: “additional criteria could be set in each recommendation.”

The Communication presented today sets general principles that any PNR agreement with a third country should observe.

1. Protection of personal data, which aim to protect the rights of passengers:

  • PNR data should be used exclusively to fight terrorism and serious transnational crime.
  • The categories of the PNR data exchanged should be limited to what is necessary for that purpose, and be clearly listed in the agreement.Passengers should be given clear information about the exchange of their PNR data, have the right to see their PNR data and the right to effective administrative and judicial redress. This helps ensure full respect for privacy and that any violation of privacy will be remedied.
  • Decisions having adverse effects on passengers must never be based on an automated processing of PNR data. A human being must be involved before a passenger is denied boarding. This seeks to prevent “profiling”.
  • Third countries must ensure a high level of data security and an effective independent oversight of the authorities which use PNR data.
  • The PNR data cannot be stored longer than necessary to fight terrorism and serious transnational crime, and third countries should limit who has access to the data gradually during the period of retention.
  • PNR data may be shared by the third country with other countries (onward transfer) only if those countries respect the standards laid down in the PNR agreement between the EU with the third country, and only on a case-by-case basis.

According to the Commission:

The views on general PNR issues of the major stakeholders, like the Member States, the European Parliament, the European Data Protection Supervisor and the Article 29 Data Protection Working Party, are especially
important in the development of the revised approach on PNR.

2. Modalities of transfer of the PNR data, which aim to provide legal certainty to air carriers and keep costs at an acceptable level: PNR data should be transmitted using the “PUSH” system, and the number of times that data is transferred before each flight be limited and proportionate.

3. Standards on monitoring the correct implementation of the PNR agreement, for instance on review, monitoring, effective dispute resolution.

4. Reciprocity should also be ensured. Information about terrorism and serious transnational crime resulting from the analysis of PNR data by third countries should be shared with EUROPOL, EUROJUST and EU Member States.

Positive
As far as I know it’s the first time that the Commission embraces the approach to limitations of rights as supported by the United Nations Special Rapporteur on the protection of human rights while countering terrorism in his privacy report.

According to the Commission:

Any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of these rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

The monitoring requirement also seems to be better than before, embracing the joint review approach.

It is essential that the EU is provided with mechanisms for monitoring the correct implementation, for example through periodical joint reviews on the implementation of all aspects of the agreements, including the purpose limitation, the rights of passengers and onward transfers of PNR data, and comprising a proportionality assessment of the retained data on the basis of their value to achieving the purposes for which the data were transferred. The findings of such joint reviews should be presented to the Council and the European Parliament.

Negative

A first quick scan of the document reveals three negative points.
 
The first one is the formulation on ‘sensitive data’. Is a ‘terrorist threat’ the same as an ‘imminent threat to loss of life’? And if a ‘terrorist threat’ doesn’t entail ‘any imminent threat to loss of life’ then what exactly sees the Commission as a ‘terrorist threat’?

PNR data revealing racial or ethnic origins, political opinions or religious or philosophical beliefs, trade union membership, health or sexual life shall not be used unless under exceptional circumstances where there is an imminent threat to loss of life and provided that the third country provides appropriate safeguards, for example that such data may be used only on a case-by-case basis, under the authorisation of a high-ranking official and strictly limited to the purposes of the original transfer.

The Commission adds that “key notions like terrorism and serious transnational crime should be defined based on the approach of definitions laid down in relevant EU instruments”. This formulation is crucial for any potential future PNR agreement with Israel, and – especially – Russia.

A second negative point is the data retention time limit, which is quite vague at this point:

The period of retention of the PNR data should not be longer than necessary for the performance of the defined tasks. The period of retention should take into account the different ways in which PNR data are used (see section 1.2.1 above) and the possibilities of limiting access rights over the period of retention, for example by gradual anonymisation of the data.

Last but not least the Commission’s approach to third countries which do not ensure an adequate level of protection of personal data, doesn’t seem to have substantially changed as well. This is important, as now the Commission needs to renegotiate the current PNR agreements with Australia, Canada and the United States. The agreements with Australia and the US are being applied provisionally, but their regular application requires the consent of MEPs. In May, the Parliament postponed a vote on the agreements and called on the Commission to draft general standards that apply to all future agreements.

The adequacy afforded by a third country is to be assessed in the light of all the circumstances surrounding a data transfer operation. In this context, the EU will also consider the compliance by the third country with international standards, respectively its ratification of international instruments on data protection and fundamental rights in general. Adequacy decisions already adopted by the European Commission in this regard should be used as guidance on what can be regarded as being adequate.

First reactions:

Jan Philipp Albrecht, a German Green MEP, said that the Commission had “still not fully got the message”. “The proposed mandates fail to provide sufficient guarantees to ensure that EU data protection law will be respected, as demanded by the Parliament,” he said.

Axel Voss, a centre-right German MEP, said that the agreement with the US would stand a chance of being approved by MEPs only if it included a limited retention period, redress for passengers and a ban on the onward transfer of data to other countries.

Background info on PNR here.

Indian Armed Forces Special Powers Act under scrutiny

The Indian Armed Forces Special Powers Act (AFSPA) has recently come under intense scrutiny, as a result of being too often used in areas declared ‘disturbed’. The AFSPA, first introduced in the north-east in 1958, was extended to Jammu and Kashmir in 1990. In 1997 the Supreme Court ordered a six-monthly review of areas declared ‘disturbed’, but this ruling is often breached.

According to Kavita Srivastava, rights activist and a leader of the People’s Union of Civil Liberties (PUCL), the AFSPA gives the military wide powers to arrest without warrant, shoot to kill and destroy property, while protecting its personnel from prosecution. As a result, “a culture of impunity has, over the many years, been fostered in the affected areas,” Srivastava said.

On September 17 India’s army chief Gen. V.K. Singh defended the AFSPA as an ”enabling provision, not an arbitrary one”. He hastened to add that it was for the government to take a ”correct decision” on changes to the Act.

An all-party group of India’s top political leaders scheduled to visit Jammu and Kashmir on September 20-22 was expected to call for a review of the AFSPA, and for inquiries into the many killings and human rights abuses that are alleged to have taken place under its shield.

In March 2009 the United Nations Commissioner for Human Rights, Navanethem Pillay, called for repeal of the AFSPA, describing it as a “dated and colonial-era law” that breached ”contemporary international human rights standards.”

Some estimates are that over 100,000 Kashmiris may have been killed by the armed forces since 1989, when separatism took a violent turn. According to the International People’s Tribunal on Human Rights and Justice more than 8,000 people have also gone missing during this period.

PUCL general-secretary Mahi PalSingh said he believed that the prolonged imposition of AFSPA in Kashmir has perpetuated the cycle of violence between citizens and the armed forces and that the space for political negotiations in that state can be opened up only after it is repealed.

France sends soldiers to Niger to hunt for hostages

The BBC reports that France has sent dozens of soldiers to Niger’s capital Niamey to hunt for seven hostages kidnapped by suspected Islamist militants. The troops are using reconnaissance planes to search the Sahara Desert for the captives who were seized last week from their homes at Arlit. The hostages — including five French citizens — were last seen heading toward the neighboring countries of Mali and Algeria with about 30 captors before being seemingly swallowed by the vast desert. The French government believes they were probably abducted by gunmen from al-Qaeda in the Islamic Maghreb (AQIM). Five of the hostages are French. The other two are from Madagascar and Togo. A defense official in Mali said the neighboring country would allow overflights by the searchers.

Recent developments in the United Nations in the area of human rights and counter-terrorism

This report by the UN Secretary General refers to recent developments within the United Nations system in relation to human rights and counter-terrorism, including through the activities of the Office of the United Nations High Commissioner for Human Rights, the Human Rights Council and its various special procedures mandates, the human rights treaty bodies, the Counter-Terrorism Implementation Task Force and its Working Group on Protecting Human Rights while Countering Terrorism, the Counter-Terrorism Committee and the Counter-Terrorism Committee Executive Directorate. It reports on the consideration by the United Nations human rights system of issues, including compliance of legislation, policies and practices for countering terrorism with international law, including international human rights law.

Compliance with human rights by the United Nations when countering terrorism

The present report submitted to the General Assembly by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism addresses the question of compliance with human rights by the United Nations when countering terrorism. The report takes stock of and assesses the role and contributions of, inter alia, the Assembly, the Counter-Terrorism Implementation Task Force, the Human Rights Council, the Security Council and its subsidiary bodies, and United Nations field presences in the promotion and protection of human rights in the context of their counter-terrorism activities.

The main recommendation contained in the report is that the Security Council should seize the opportunity of the approaching tenth anniversary of its resolution 1373 (2001) to replace resolutions 1373 (2001), 1624 (2005) and 1267 (1999) (as amended) with a single resolution, not adopted under Chapter VII of the Charter of the United Nations, in order to systematize the States’ counter-terrorism measures and reporting duties of States under one framework. This proposal is motivated by the assessment of the Special Rapporteur that Chapter VII does not provide the proper legal basis for maintaining the current framework of mandatory and permanent Security Council resolutions of a quasi-legislative or quasi-judicial nature.

The report also addresses ways and means of improving the human rights accountability of the United Nations for its field operations, including in the context of countering terrorism, as well as the contributions of various actors in the implementation of the 2006 United Nations Global Counter-Terrorism Strategy (General Assembly resolution 60/288).

Reprieve: Abu Zubaydah was held in secret detention in Lithuania

In a letter to the President and Prosecutor General of Lithuania,  the British human rights charity Reprieve has requested a full and thorough investigation into allegations that Lithuanian officials were complicit in the secret detention of ‘high value detainee’ Abu Zubaydah between 2004 and 2006.

According to Lithuania’s Parliamentary Committee on National Security and Defence, officials from Lithuania’s state security department assisted in the construction of a CIA prison in Lithuania. Reprieve has now learned “from a highly reliable source” that one such prisoner was Abu Zubaydah. The organisation is certain that at some point between his arrival in Morocco in 2004 and his arrival in Guantánamo in 2006, Mr Zubaydah was detained in Lithuania.

DOJ Inspector General Report – Review of the FBI’s investigations of certain domestic advocacy groups

The US Department of Justice (DOJ) Office of the Inspector General (OIG) released a report Monday absolving the FBI of charges that agents conducted investigations of domestic groups based on their exercise of First Amendment rights. The report criticizes the FBI for beginning investigations on weak factual predicates, continuing investigations longer than necessary, inappropriately retaining information on file and misclassifying investigations, and probing issues of state, rather than federal, law. The FBI reportedly monitored the Thomas Merton Center for Peace and Justice, an anti-war activist organization based in Pittsburgh, People for the Ethical Treatment of Animals (PETA), and Greenpeace USA . Additionally, the report indicates that Greenpeace advocates were inappropriately added to the terrorist watch list. In a response included in the report, FBI Deputy Director Timothy Murphy states that the FBI is “pleased that the Report concludes that the FBI did not target any groups for investigation on the basis of First Amendment activities.” Additionally, Murphy said the FBI “regrets that inaccurate information was provided” to Director Robert Mueller , which he subsequently presented to Congress. During a 2006 hearing before the Senate Judiciary Committee, Mueller refused to answer questions about the administration’s domestic spying program , saying the information was classified.