Mixed reactions to air data deal

Surrounded by bleary, red-eyed officials the European Commission and the Finish government announced last Friday (6 October) morning that a deal on the transfer of airline passenger data had been struck.

Negotiations lasting nine hours had continued into the small hours of the morning but in the end the EU had come out with what was hailed as a successful interim deal. Franco Frattini, the commissioner for justice, freedom and security, stressed that no ground had been conceded on the number of pieces of information that could be handed over or on the length of time that the US could hold on to the data for. He added that the EU had persuaded the US to change the system of obtaining the data, from one where the US authorities retrieve the data to one where the airlines send it over.

Frattini mentioned that US security agencies could now more easily get access to this data but that the US had given the EU guarantees on how the data would be used and by whom.

Some officials believe the EU did well in holding out against pressure from the US to accept various changes. "There isn’t a huge difference between this deal and the last one …not a huge amount was conceded," said one diplomat.

US agencies, such as the FBI or CIA, could under the original deal have got access to the data and the new deal merely put that into print. More importantly the deal has been hailed as an example of European negotiations going impeccably well. "Member states for once held their lines and kept a lid on this. The 25 [member statest] did hold together, showing that they can negotiate on a justice and home affairs agreement in a unified way," the diplomat added.

There were few leaks to the media during the negotiations and national capitals, despite being lobbied by the US over the summer, stuck to their position that the Commission and the presidency had been given a mandate to negotiate the deal.

But others see last week’s deal as showing EU weakness, especially when the Commission had been adamant all along that no change to the content of the original deal would be made. "In the area of security the EU is weak at times of agreement…security issues remain purely governmental," said Sergio Carrera, research fellow at the Centre for European Policy Studies. He added there were not enough safeguards in the new deal to ensure European citizens’ data would be fully protected. "There are a number of questions about how the data will be used, for what purposes it is going to be used and guarantees once the data is sent over."

Sophia in ’t Veld, a Dutch liberal MEP, was particularly concerned about a letter sent by the US Department of Homeland Security (DHS) on what they consider the deal to mean. It states that the US can get access information earlier than they could have under the original agreement and that "in the context of infectious disease and other risks to passengers, DHS reconfirms that access to such information is authorised".

The deal brokered is another example of the EU accepting US demands and is similar to the way EU citizens’ rights are violated in the continued relaying of financial information to the US through the SWIFT banking transfer system, said in ’t Veld. "My problem is this sets an extremely bad precedent. It will have a bad impact on the SWIFT case and it is probably only a matter of time before we hear of telecoms data transfers."

The EU and US will be back around the negotiating table for a full agreement, to be in place by July next year and then the EU will have little bargaining room, said in ’t Veld. "Once you give so much away you are not going to get it back."

But some believe that the European Parliament brought much of this bother on the shoulders of the EU by bringing the original challenge to court. At the very least there is a certain irony in the case being taken on civil liberties grounds resulting in a new deal being agreed which raises even further privacy concerns.

The EU position was ultimately compromised by having to renegotiate an interim deal, said Hugo Brady, research fellow with the Centre for European Reform. "There was a sense that the EU caused this problem and had a slightly plaintive case in the talks. This created a little more pressure on them."

This pressure is unlikely to lift for the EU when both sides sit down to talks for the next agreement. As one diplomat put it: "You can bet your life the US will come down on them like a tonne of bricks next time".

Surrounded by bleary, red-eyed officials the European Commission and the Finish government announced last Friday (6 October) morning that a deal on the transfer of airline passenger data had been struck.