FRANCE: GOF TO PERMIT AIR FRANCE TO SCREEN

UNCLAS SECTION 01 OF 02 PARIS 000575 SIPDIS SENSITIVE SIPDIS STATE FOR EB/TRA, EUR/WE, S/CT, L DHS FOR TSA E.O. 12958: N/A TAGS: EAIR PTER FR SUBJECT: FRANCE: GOF TO PERMIT AIR FRANCE TO SCREEN SELECTEES, DIRECTLY IMPLEMENT OTHER EA'S ¶1. (SBU) SUMMARY: Reversing several years of reticence, the French Civil Aviation Authority indicated in an e-mail January 29 that it was now prepared to allow Air France to fully implement TSA Emergency Amendments concerning No-fly, Selectees, and the Master-Crew List. This is good news. The GOF's legal reasoning on the issue however raises questions about whether it intends this to serve as a precedent for future EA's, as well as whether its new approach could conflict with that taken by the French Data Privacy Authority (CNIL). -------------- --- GOF NOW ACCEPTS ALL CURRENT EMERGENCY AMENDMENTS -------------- --- ¶2. (SBU) The e-mail, which came in response to Embassy inquiries and was coordinated within the French government and was also sent to TSA and Air France, stated "we can confirm that there is no French regulatory text that requires or forbids airline transportation companies to conform to requirements of the American administration before entry into its airspace," and recalls that a prior order requiring airlines to inform the French Border police of positive No-Fly matches was lifted in July of 2006. The message affirms that airlines may work directly with the USG on the implementation of TSA Emergency Amendments (EAs). Though Air France intends to request formal notification from the Government of France, it has indicated that it is satisfied it has now authority to proceed with EA implementation, and met with TSA February 9 to review outstanding issues, including No-Fly notification procedures, Selectee passenger screening, and provision of properly formatted Master Crew Lists (MCLs). ¶3. (SBU) The GOF communication has the potential therefore to resolve several long-standing issues growing from its historical reluctance to allow USG agencies to directly apply aviation security measures to French carriers operating on French territory. An Embassy-brokered arrangement requiring airlines to notify the USG of No-Fly matches via the French border police allowed No-Fly screening to proceed in a relatively satisfactory manner, but the GOF refused to issue instructions to their airlines to perform Selectee EA screening despite repeated requests by all levels up to and including DHS Secretary Chertoff, who was told in January 2006 that the GOF would need time to resolve the legal issues related to data protection and the role of the CNIL in regulating airlines security screening practices before they could move ahead with Selectee screening. We strongly and repeatedly argued that such issues could best be resolved in the context of France's obligations to ensure aviation security and respect for U.S. security requirements under the Chicago Convention and our bilateral aviation services agreement. -------------- NEW LEGAL REASONING -------------- ¶4. (SBU) After substantial interagency consultation on the data privacy issue, the GOF decided last summer that contrary to its previous arguments that No-Fly screening was a security issue requiring a GOF mandate, they now viewed it as a business practice issue for airlines seeking to enter US airspace. They informed the airlines in July that they would need to apply to the CNIL for approval of their No-Fly data processing, if this took place even partially on French territory. They informed the Embassy of this decision in a note verbale of July 26, and noted in passing that the GOF did not challenge the juridical basis of our right to limit access to U.S. territory, which they cited as being articles 11 and 13 of the Chicago Convention. The repeal of the Civil Aviation Authority (DGAC) directive authorizing No-Fly screening was directly related to this decision. In both the Embassy's and Air France's view, however this left intact both the GOF's opposition to Selectee screening, and the arrangements we had previously agreed upon for Air France to furnish the MCL via the French Border Police. The Border Police's recent refusal to accept the MCL from Air France and the DGAC's e-mail indicates that the GOF has now quietly backed away from all of its earlier objections, and is willing to accept TSA implementation of all existing EA's. This may or may not constitute a precedent for future measures. -------------- PARIS 00000575 002 OF 002 OUR VIEW -------------- ¶5. (SBU) This is on the whole good news. After a long struggle, we have gained GOF acquiescence in the application of U.S. aviation security measures in a manner that will be more efficient and transparent for all. It is perhaps not surprising that given its prickly sensitivity to all matters sovereign, it has been reluctant to provide clear guidance to Air France about the full extent of its change of heart, but with some prodding from the Embassy, it has now done so. It has taken on board only a part of our argument however, and has placed the responsibility for ensuring compliance with aviation security requirements on the airlines, rather than on itself as a party to international aviation agreements. We will need to see if this strengthens or weakens the airlines' vulnerability to potential lawsuits from customers, which was formerly cited by the GOF as a prime reason for needing to ground No-Fly screening more clearly in French law. -------------- THE FINE PRINT -------------- ¶6. (SBU) We note that the GOF has been quite prudent in formulating the legal basis for its position, and has limited its comments to affirming that no French regulation currently bars airlines from implementing TSA EAs. To the extent they have cited justification in international law, it has been the Chicago Convention, rather than our bilateral Air Services Agreement. While we do not believe we are likely to get any clearer legal explanations in writing, we wonder whether this is to protect a fall-back position in case of objections to future US requirements, or because to do so would provide a more unambiguous bilateral basis for assent to US security requirements. Could it conceivably have something to do with concerns about the stability of Open Skies agreements given the ECJ decision? -------------- DATA PRIVACY IMPLICATIONS? -------------- ¶7. (SBU) We would also underline the data privacy implications of this view, which is not necessarily shared by the CNIL. The CNIL's view is directly contrary to the GOF, in that it presumes that the international legal framework for data transfer is insufficient, and that a national law--on the basis of the government's responsibility for security--is required. In an opinion piece it published on its website in June 2006, the CNIL flatly stated that transfer of data by European airline companies "is not regulated by international agreements. Transmission of passenger data derived from reservation and check-in systems requires a decree from the State Council after consultation with the CNIL." We have yet to see which way the CNIL will lean on this issue, and we have heard from recent conversations with Air France that it believes the upcoming introduction of APIS Quick Query (AQQ) would satisfy the CNIL's objections. (Comment. This is due reportedly to the CNIL,s view that data transfer from France is less problematic than data manipulation (i.e., list comparisons) in France. End Comment.) In the event of an adverse decision however, by not directly assuming responsibility for aviation security, the GOF apparently has preemptively placed itself in a weaker position from which to deal with the CNIL, and with us, to seek an eventual remedy. Please visit Paris' Classified Website at: http://www.state.sgov.gov/p/eur/paris/index.c fm WHITE