MEETING OF U.S.-EU SENIOR OFFICIALS ON DATA

UNCLAS SECTION 01 OF 02 STATE 163088

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PTER EUN
SUBJECT: MEETING OF U.S.-EU SENIOR OFFICIALS ON DATA
PROTECTION PRINCIPLES

Summary: On November 2 the USG hosted senior officials from
the European Commission, Council Secretariat, the EU
Counterterrorism Coordinator, and the Portuguese and
Slovenian Presidencies for the second meeting of the High
Level Contact Group Principals to discuss a long term
solution to the growing privacy debates between the EU and
the U.S. Broad agreement to press for a swift completion of
the catalogue of common principles, preferably by the end of
the year, was reached. EU Representatives also made
welcoming overtures about seeking a formal negotiating
mandate in the near future, representing a significant step
forward from previous conversations. End Summary.


2. On November 2, DHS A/S for Policy Stewart Baker, Amb.
Boyden Gray, State INL DAS Liz Verville, DOJ AAGs Fisher and
Wainstein chaired a High Level Contact Group (HLCG)
Principals meeting with EU officials in Washington.
Principals discussed the purpose and way forward for the
group,s discussion of data privacy principles. A/S Baker
framed the meeting around 1) the timing of the agreement, 2)
the benefits the agreement will extend to either side, and 3)
the procedures to be taken following the conclusion of the
agreement in instances where data privacy issues arise.


3. A/S Baker expressed his desire that the work of the HLCG
should head off future disputes like those preceding the
U.S.-EU Passenger Name Record (PNR) Agreement, and expressed
his conviction that such disputes had long term deleterious
effects on the transatlantic relationship. Agreement on HLCG
principles would eliminate these drawn out debates, and
instead would enable discussions to focus on whether HLCG
principles were respected. Justice, Freedom, and Security
Director General Jonathan Faull agreed that the HLCG should
&be as ambitious as possible8 in its work, and that the
group should finalize its work as quickly as possible.


4. Faull mentioned that he would have some difficulties
convincing Europeans that HLCG principles would be fair,
given that the U.S. Privacy Act only applies to U.S.
citizens. He understood that in practice many protections are
conferred on non-U.S. citizens, but emphasized that any
efforts the U.S. can undertake to reassure Europe that U.S.
privacy laws, policies, and regulations will be applied to
European citizens would be positive. A/S Baker noted
operational difficulties in making blanket statements but did
not dismiss emphasizing this point when practical. DAS
Rosenzweig asked whether the difficulties Principals
enumerated were problems of messaging., Principals
affirmed that the equivalent application of the principles to
U.S. and EU citizens alike would send a strong message.


5. Faull noted his desire to show &very, very substantial
progress8 by the end of the year. Principals agreed that
the soft deadline for the group's work was the end of 2007.


6. Commission and Council officials headed off U.S. concerns
that political agreement on the EU Data Protection Framework
Decision by the end of 2007 would negatively affect the
conclusion of favorable HLCG principles. DG Faull explained
that the conclusion of HLCG principles with the United States
should be &highly persuasive8 to Member States as they make
their adequacy determinations of the U.S., giving
&considerable effect to the principles.8 DG Faull also
noted that a &common approach8 among member states to the
adequacy requirements of Article 14 of the Framework was a
possibility. He emphasized that the Framework Decision would
only apply to indirect data transfers, when Member State A
would transfer to the United States data from Member State B.
Faull cautioned, however, that the principles are general
and don't dispose of specific concerns, such as retention
periods.

7. The Commission and Council Secretariat agreed that the
Portuguese Presidency,s announcement of agreement on the
Framework Decision should also include statements noting the
significant amount of progress achieved on HLCG principles
and that the Framework Decision would not interrupt ongoing
data exchanges. They also emphasized that the expected
&agreement in principle8 on the text of the Framework
Decision by the end of the year did not mean the HLCG needed
to conclude its work by the end of the year to take advantage
of the grandfather clause because it could take up to two
years for Member States to adopt domestic legislation
implementing the EU Framework Decision. (NOTE: The EU
achieved agreement in principle on November 8 at the Justice

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and Home Affairs Council meeting.)


8. A/S Baker inquired about the agreement,s benefit for the
U.S. and EU, e.g., for assuring private entities were not
punished for transferring data according to legal
requirements, and how conflicts would be resolved. Faull
responded that EU expert level discussions on these topics
had not yet taken place. Faull also insisted that current
conditions prevented any binding outcome because the
Commission did not currently operate under a mandate to
negotiate an international agreement. However, Faull noted
his willingness to seek a mandate for a binding agreement,
should there be consensus that one was needed. A/S Baker
affirmed the group needed to explore its options, and that he
was not necessarily in favor of a binding agreement.


9. DG Faull noted the Canadian government,s interest in a
similar set of principles, and opined that the work of the
HLCG could establish a model that other countries could
follow. A/S Baker responded positively to this news.


10. The Principals agreed to continue expert level
discussions, with a goal of reaching agreement on principles
by the end of 2007.


11. Principal attendees included:
United States:
USEU Ambassador C. Boyden Gray
DHS Assistant Secretary for Policy Stewart Baker
DHS Deputy Assistant Secretary for Policy Paul Rosenzweig
DHS Assistant Secretary for International Affairs Marisa Lino
DHS Chief Privacy Officer Hugo Teufel
DOJ Assistant Attorney General Alice Fisher
DOJ Assistant Attorney General Ken Wainstein
DOJ Acting Chief Privacy and Civil Liberties Officer Ken
Mortensen
DOS Deputy Assistant Secretary, INL Liz Verville

European Union
European Commission, Justice, Freedom and Security DG
Jonathan Faull
EU Counterterrorism Coordinator Gilles de Kerchove
European Commission, Head of Sector Cecilia Verkleij
Portuguese Border Service, Assistant Director General,
Francisco Marques Alves
Portuguese Ministry of Justice, Director, Bureau for
International Relations, Miguel RomFo
Embassy of Slovenia, Consul, Jean-Pierre Vonarb
RICE