Air data decision faces legal challenge

MEPs may mount a legal challenge to a Brussels decision clearing controversial air passenger data transfers to US security agencies.

The European Commission on Tuesday gave a clean bill of health to the hand-over of detailed air passenger booking information to Washington’s Department of Homeland Security.

But the anti-terror measures – in place since March 5 – have generated concern in the European Parliament.

And senior Dutch MEP Johanna Boogerd-Quaak is seeking legal clarification of transfers she regards as illegal – with or without the commission’s ruling of “adequacy” within EU privacy laws.

Boogerd-Quaak, the vice chairman of the parliament’s justice committee, “refutes” Washington claims that the data grabs are legal.

“The so called 'adequacy finding' that the commission has made is neither a binding agreement between the US and EU, nor does it stop the transfer of passenger data to the US which are in blatant breach of EU data protection laws,” she said.

“The adequacy finding means that the commission believes that the US provides adequate protection of the passenger data, despite the fact that the transfer is without the consent of the passengers, that the transfer in itself is illegal according to EU data protection laws and that the US has no proper data protection laws.”

Washington has ordered a broad range of data held by airlines on EU travellers visiting the US be handed over to ‘homeland security’ authorities.

The records are regarded as “vital” in the war on terror triggered by September 11 2001’s air-hijack attacks on New York and Washington.

Information – 34 fields of data – is delivered straight from European central reservation systems to US law enforcement databases.

Details include the names of all travellers, all contact details, telephone numbers, addresses, emails, payment information, bank numbers and credit card data.

The MEP is warning the commission that, when it finally tables a detailed “adequacy”, Brussels should ask EU judges to check the legality of any deal.

“The Treaty of Nice gives the Parliament the right to seek the opinion of the European Court of Justice to examine the legality of a contemplated agreement,” she insists.

“I have urged the commission on its own accord to seek this opinion, but if not, parliament shall certainly seek to obtain this opinion. Moreover, I am considering asking the newly appointed European Data Protection Supervisor for his opinion.”

Such a move would require a European Parliament vote, a challenge Brussels political fixers are confident can be avoided.

A commission spokesman stressed that MEPs were jumping the gun.

“They should wait and see,” he said.

But many MEPs are angry that the commission’s move to rule the data transfers within EU rules will allow Brussels and Washington to sidestep a vote in either the European Parliament or the US Congress.
 
"The only permanent solution is an international agreement between the EU and the US, with full involvement of the European Parliament and the US Congress,” argues Boogerd-Quaak.

“I deplore this failure of the commission to immediately enforce EU data protection laws.”

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