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


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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