DUTCH GOVERNMENT SUPPORTIVE OF U.S. - EU PNR AGREEMENT

UNCLAS SECTION 01 OF 02 THE HAGUE 001440 SIPDIS DEPT FOR EUR/UBI AND EUR/ERA HOMELAND SECURITY FOR OIA AND PRIVACY OFFICE SIPDIS E.O. 12958: N/A TAGS: PTER EAIR ETRN EUN NL SUBJECT: DUTCH GOVERNMENT SUPPORTIVE OF U.S. - EU PNR AGREEMENT THE HAGUE 00001440 001.2 OF 002 ¶1. Summary. In a July 7 letter to Parliament, Minister of Justice Ernst Hirsch Ballin and MFA State Secretary for EU Affairs Frans Timmermans gave a positive assessment of the new U.S. - EU PNR Agreement. The letter provided an overview of the agreement, which it said was "balanced," and provided an adequate level of data protection. Hirsch Ballin and Timmermans indicated that Parliamentary approval for the agreement was required; in the meantime, the agreement could be provisionally implemented once signed by the United States and the European Commission (EC). End Summary. ¶2. The letter informing Parliament that the U.S. and the European Commission had reached agreement on the text of a new PNR Agreement to replace the interim Agreement set to expire at the end of July noted that new Agreement was similar in substance to the previous Agreements. The letter notes that EU paid particular attention during the negotiations to ensuring an adequate level of data protection. Hirsch Ballin and Timmermans expressed satisfaction that the negotiations resulted in a balanced draft agreement which meets the previously agreed guidelines for the EU negotiating mandate, and thus forms a good negotiation result of the German presidency and the Commission. ¶3. The letter states that Parliamentary approval for the Agreement was required in the Netherlands, as well as other EU member states, and that the government would submit the Agreement, once signed, to Parliament for ratification. The Netherlands, it said, would make a statement in the Council that it must complete its constitutional procedures before giving final approval to the Agreement. In the interim, the Agreement would go into effect on a provisional basis as of the date signed. ¶4. The letter highlighted the following key elements of the Agreement: -- The objectives of the Agreement are combating terrorism and serious cross-border crime; U.S. law enforcement agencies charged with deterring terrorism and serious crime will have access to PNR data for the purposes stated; -- An exchange of letters between the U.S. government and the EC articulating commitments on the protection of passenger data will form the basis for binding commitments; -- PNR data will be retained in active status for seven years, followed by an additional eight year period in inactive status with limited access; -- PNR data will be protected in the United States in accordance with U.S. privacy law, and passed only to third countries that meet similar standards, except in emergency situations; -- Fewer PNR data items will be provided than under the previous agreement; however, this does not necessarily mean less data will be provided (Note. This is an apparent reference to the move from 34 "data elements" to 19 "types of PNR," but the letter does not provide details about the information to be transmitted. End Note); -- Sensitive data, such as data indicating religion, race, or political convictions may not be used, except in emergency situations; -- The current "pull" system for transmitting the data will be changed to a "push" system as of January 2008; -- Reciprocity will be respected; however, this will be defined at a later date, as the EU does not yet have a PNR system in place; ¶5. During the DCM's July 20 courtesy call on him, MFA DG for European Cooperation Ian De Jong noted in passing that the PNR issue appeared to be finally resolved; this, he said, was a positive development for the U.S. - EU relationship. He did not indicate any concern about the prospects for expeditious Parliamentary approval. ¶6. During a May 31 Justice Committee debate on international data exchange (NOTE. prior to conclusion of negotiations on the new U.S. - EU PNR Agreement. END NOTE),Minister Hirsch Ballin stressed that the GONL favored the conclusion of a new U.S. PNR Agreement; he added that bilateral solutions or an extension of the current interim Agreement were not viable long term solutions. He said that privacy was not an absolute right, but that any restrictions on privacy must serve a clear purpose. He said that in principle, PNR data would be protected in the United States under the U.S. Privacy Act, but noted he believed there could be exceptions related to terrorism cases. He promised to provide Parliament further information in writing on the government's position on the retention THE HAGUE 00001440 002.2 OF 002 period for PNR data, the role of the European Data Protection Supervisor and the Dutch Data Protection Authority in the PNR negotiations, and the costs incurred by airlines to provide PNR data to the U.S., and to turn around in mid-flight due to irregularities in PNR data. ¶7. Parliamentarians raised a number of issues during the debate, though none indicated that they were inclined to oppose a PNR agreement with the U.S. Several MPs raised the data retention period, reciprocity, and evaluation mechanisms as important considerations for approving an eventual agreement. Fred Teeven of the Liberal (VVD) Party was the most outspoken in support of an agreement on PNR, criticizing those who put privacy over security concerns. Coskun Coruz of the government coalition partner Christian Democratic (CDA) party applauded the Cabinet's positive but critical attitude on PNR. Aleid Wolfsen of government coalition partner Labor (PvdA) Party raised concern about the extent of the data provided under a PNR agreement, asking if information on religion, sexual orientation and political affiliation would be excluded. Naima Azzough of the GreenLeft and Jan de Wit of the Socialist (SP) Party stressed reciprocity, proportionality and subsidiarity as key concerns; Azzough also raised the need for guarantees on legal certainty and respect for Dutch sovereignty, and the concern about the types of information provided. ¶9. Comment. There has been little press attention so far to the conclusion of a new PNR Agreement, though that could change as the summer holiday period draws to a close and the Agreement is submitted to Parliament for approval. There has been little indication of serious Parliamentary opposition to ratification of a new PNR Agreement; however, PNR is often raised, along with apparently unrelated issues such as the transfer of SWIFT bank transaction data, by Parliamentarians and the press as a potential violation of European data protection rules. Parliamentarians and others critical of the United States, in particular U.S. conduct of the global war on terror, also have a tendency to use PNR and data protection concerns as a convenient cudgel with which to beat up on us. It is too soon to tell whether that tendency will significantly complicate the upcoming debate on Dutch ratification of the new PNR Agreement. The upcoming visit by the DHS Chief Privacy Officer will provide a timely opportunity to start setting the record straight on PNR and data protection concerns. End Comment. Gallagher