Article 29 WP Opinion 7/2010 on European Commission’s Communication on the global approach to transfers of Passenger Name Record (PNR) data to third countries

The European data protection authorities remain very critical about the European Commission’s wish to exchange Passenger Name Record (PNR) data with countries outside the European Union. In its opinion, the Article 29 Working Party questions the necessity of large-scale profiling for law enforcement purposes on the basis of passengers’ data. The European data protection authorities stress that the European Commission still has not presented objective proof or statistics that PNR data are valuable when combating terrorism or transnational crime.

In the current Communication, the European Commission merely states that PNR are an increasingly accepted tool, necessary in the fight against terrorism and serious crime, without substantiating this statement. The Commission does not seem to make a distinction between the increasing use of PNR data and the increasing acceptance of the use of these data. It may be the case that the law enforcement authorities have indeed become used to having PNR data at their disposal, but that fact alone does not prove political or public acceptance of the collection and use of PNR data, nor does it justify its necessity.

The three arguments given in paragraph 2.2 of the Communication seem to indicate that: “it is nice for the law enforcement authorities to have PNR data” rather than “the law enforcement authorities need to have PNR data to combat terrorism and serious crime”. The Working Party also regrets the Commission has not felt the need to further elaborate on the effectiveness of the use of PNR data, which is an essential element when judging necessity.

In its previous opinions, the Working Party has time and again stressed the importance of striking the right balance. So far, this has not been the case. Most importantly, there are no objective statistics or evidence which clearly show the value of PNR data in the international fight against terrorism and serious transnational crime. This makes it impossible to clearly assess the necessity or the proportionality of the use of PNR for law enforcement purposes.

According to the Working Party, any PNR system should be:
· demonstrably necessary to address the problem;
· demonstrably likely to address the problem;
· proportionate to the security benefit;
· demonstrably less invasive than alternative measures; and
· regularly reviewed to ensure the measures are still proportionate.

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