Airline records an essential part of EU counter-terrorism policy

Article by Brian Hayes MEP which was published in Garda Review on 21st April 2015

New European laws that would oblige airlines to give police in EU countries the data of passengers entering or leaving the EU, in order to help fight serious crime and terrorism must not be delayed any longer, writes Dublin MEP, Brian Hayes.

Passenger Name Record (PNR) data is information provided by passengers and collected by airlines during reservation and check-in procedures. It includes several different types of information, such as travel dates, travel itinerary, ticket information, contact details, baggage information and payment information.

PNR data would enable law enforcement authorities to identify previously “unknown” persons, i.e. those previously unsuspected of involvement in serious crime or terrorism, but whom an analysis of the data suggests may be involved in such crime and could be further investigated by the authorities.

EU-level measures such as the directive on Advance Passenger Information (API), the Schengen Information System (SIS) and the second-generation Schengen Information System (SIS II) do not enable law enforcement authorities to identify “unknown” suspects in the way that an analysis of PNR data can.

The use of PNR data is not currently regulated at EU level. Some member states already have a PNR system (e.g. the UK), while others have either enacted legislation or are currently testing PNR data systems. Most EU countries use PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime in a non-systematic way or under general powers granted to the police.

Ireland does not at present use PNR data for security and law enforcement purposes.  We do not have a system for gathering PNR data from airlines. This will change when agreement is reached at EU level on a Directive which sets out an EU framework for PNR.

A 2011 proposal for a EU wide framework for PNR was narrowly rejected by the Civil Liberties Committee of the European Parliament in 2013. MEPs voting against in committee questioned the proportionality of the proposed EU scheme for the collection, use and retention of airline passengers’ data (irrespective of whether or not they are suspects) and its compliance with fundamental rights, especially data protection, while those voting in favour highlighted its potential added value for EU counter-terrorism policy, underlining that a EU framework would be better than a patchwork of differing national systems.

Negotiations were delayed by the elections of last year and the proposal failed to progress. Debate on the proposal has gained momentum due to concerns over possible threats to the EU’s internal security posed by Europeans returning home after fighting abroad for terrorist groups. In the aftermath of the terrorist attacks in Paris and Belgium, this proposal is again under the spotlight.

In  February 2015, I voted on a resolution on anti-terrorism measures, saying the EU institutions should commit to finalising an EU PNR Directive by the end of the year.

A new draft text on an EU system for the use of Passenger Name Record was discussed in the Civil Liberties Committee later that month.

An evaluation of the necessity and proportionality of the proposal in the face of current security threats, its scope (list of offences covered), retention periods, the inclusion or exclusion of intra-EU flights, the connection with the on-going data protection reform, as well as the consequences of the EU Court of Justice judgement annulling the 2006 data retention directive, were among the issues discussed by MEPs.

The new proposals in the revised draft report include:

  • the scope of the proposal is narrowed to cover terror offences and serious “transnational” crime (the list of specific offences includes, for instance, trafficking in human beings, child pornography, trafficking in weapons, munitions and explosives),
  • sensitive data to be permanently deleted no later than 30 days from the last receipt of PNR containing such data by competent authorities. Other data will continue to be masked after 30 days,
  • the inclusion of intra-EU flights (not initially included by the Commission, but the Council of the European Union favours the inclusion of internal EU flights),
  • 100% coverage of flights (the Commission text proposed to reach 100% coverage of international flights in gradual steps),
  • access to the PNR data continues to be allowed for five years for terrorism, but is reduced to four years for serious crime,
  • each EU member state should appoint a data protection supervisory officer,
  • persons who operate security controls, who access and analyse the PNR data, and operate the data logs, must be security cleared, and security trained,
  • references are made in the text to the EU Court of Justice judgment on data retention and to the current EU data protection rules, and
  • the period for member states to transpose the directive is extended from two to three years (given the specific technological and structural demands of setting up an EU PNR system for each member state).

I support the new proposals as they strike a good balance between supporting law enforcement in the fight against serious crime and terrorism while at the same time providing reassurance to citizens as to their privacy and data protection rights.

Justice Minister Frances Fitzgerald has been in constant contact with me on this issue and has left me in no doubt that Ireland has consistently supported the proposed Directive.

Information provided to Irish authorities by partner States that already make use of PNR data demonstrate that this is a tool of proven value to police and security services in combating serious crime and terrorism. Given that PNR data is currently shared by EU Member States (including Ireland) with Australia, Canada and the US, it is an increasingly untenable proposition to hold that EU Member States cannot share it among themselves within an EU framework.

The European Parliament has deliberated on this issue since 2011. It cannot delay on a vital tool in the fight against terrorism for much longer. We must give police and security services across the EU the help they need to keep us safe.

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