Identifier
Created
Classification
Origin
08VIENNA1036
2008-07-23 08:17:00
CONFIDENTIAL
Embassy Vienna
Cable title:  

DHS-EUROPEAN COMMISSION MEETING IN VIENNA ON

Tags:  CVIS KCRM PTER EUN AU 
pdf how-to read a cable
VZCZCXRO3940
RR RUEHAG RUEHROV
DE RUEHVI #1036/01 2050817
ZNY CCCCC ZZH
R 230817Z JUL 08
FM AMEMBASSY VIENNA
TO RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC
RUEHC/SECSTATE WASHDC 0588
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
C O N F I D E N T I A L SECTION 01 OF 02 VIENNA 001036 

SIPDIS

E.O. 12958: DECL: 07/21/2023
TAGS: CVIS KCRM PTER EUN AU
SUBJECT: DHS-EUROPEAN COMMISSION MEETING IN VIENNA ON
VWP-RELATED AGREEMENTS

Classified By: Econ/Pol Counselor Dean Yap. Reason: 1.4(b)

Summary
-------

C O N F I D E N T I A L SECTION 01 OF 02 VIENNA 001036

SIPDIS

E.O. 12958: DECL: 07/21/2023
TAGS: CVIS KCRM PTER EUN AU
SUBJECT: DHS-EUROPEAN COMMISSION MEETING IN VIENNA ON
VWP-RELATED AGREEMENTS

Classified By: Econ/Pol Counselor Dean Yap. Reason: 1.4(b)

Summary
--------------


1. (C) DHS A/S for Policy Stewart Baker and European
Commission (EC) Justice DG Jonathan Faull, meeting in Vienna
July 17, agreed on various steps to advance further U.S.-EU
(and U.S.-EU member state) negotiations on the Visa Waiver
Program (VWP) MoU and related data exchange agreements.
Faull believed the immediate issue of sharing information
could be resolved by categorizing it as "national
security-related data," which falls outside the EU
Commission's competence, as set out in a letter from
Commissioner Barrot to Secretary Chertoff. However, sharing
of data on border crossings and asylum applications, as DHS
had proposed, required more work with member states. A/S
Baker pushed for faster action on these items, notably for
sharing data from the EU's Eurodac and SIS data bases, noting
that sharing the information would result in fighting asylum
fraud and terrorist travel and thereby bring benefits to
people in both the U.S. and EU. Regarding the HLCG
discussion on data protection, Baker and Faull agreed that
the two sides should work to develop information on how the
two sides' regimes, despite different legal foundations, had
much the same practical effect. End Summary.

Sharing of EU Data
--------------


2. (C) DG Faull reported that at a recent meeting of the EU's
JHA Council, most EU member states objected to a pilot
project on exchanging data from the EU's SIS and Eurodac data
bases. Faull acknowledged that this may have reflected
unfamiliarity with the idea, and affirmed that the EC would
not abandon the idea. He wondered if the establishment of
working Groups to look at the idea in more detail would be
helpful. Referring to a recent letter from Commissioner
Barrot to Secretary Chertoff, Faull emphasized that the EU's
objective now was to resolve immediate problems related to
VWP eligibility. He saw the SIS and Eurodac issue as a
mid-term project, but asked if the U.S. priority was, as he
understood, on national security-related data. He reported
that, at their last meeting with COREPER, Barrot and he had
told the Council that this was the case. Moreover he had

said that the exchange of national security information was
not a matter of EU competence -- national intelligence
authorities were free to exchange information through their
established channels while, at the same time, providing that
information to the Schengen data bases. This, Faull thought,
would resolve the immediate issue of U.S. access to EU member
state data.


3. (C) Baker acknowledged this as an option, and underscored
USG preference for HSPD-6 agreements, but pointed out that
such channel were not normally used to share data on asylum
fraud, for example. Faull asked that the U.S. understand the
strains the Schengen system has already imposed on new and
old EU member states. He noted that many members, for
example, were very concerned about sharing data with one
another, and that U.S. requests for more comprehensive
exchanges, though understandable, required time. While these
were being prepared, he emphasized the U.S. should resolve
its immediate concerns. In response to a question, Faull
affirmed that there was no obstacle to sharing exit/entry
data via intelligence channels.


4. (C) Baker and Faull discussed at length the legal regime
surrounding SIS and Eurodac data. Faull generally accepted
the utility of sharing such data from a law enforcement
perspective, but emphasized that providing it from the EU
databases themselves, or providing the data from national
databases for other than asylum adjudication purposes was not
legal. Changes to the EU statute are being considered to
allow the data's use for law enforcement purposes; further
amendments would be necessary of the data were to be shared
outside the EU. Whether the nations that collect the data
could share it would depend on the exact structure of their
national databases and national legislation.


5. (C) Faull asked whether the U.S.-EC track on VWP
membership could be concluded by an exchange of letters,
rather than the U.S.-EC agreement Commissioner Barrot
mentioned in his letter. Baker said he would consider the
proposal and affirmed his belief that the two sides had
resolved most of the issues Barrot wrote should be considered
resolved. Baker also stated DHS did not intend to delay EU
member states' VWP accessions due to lack of progress on the
EC track; each EU member state would be judged on its own
merits. Faull appeared reassured. Baker also pointed out
that the U.S. might like to see increased cooperation on

VIENNA 00001036 002 OF 002


repatriation. Faull agreed on the need for U.S.-EU
cooperation on third country repatriation challenges and in
multilateral fora; Baker concurred.

VWP Review
--------------


6. (C) Baker and Faull briefly discussed the biennial review
of VWP states. Baker reported that countries with a major
overstay problem could face a loss of status in the program.
Baker also confirmed that, beyond the VWP MoU and the two
implementing agreements (HSPD-6 and Pruem-like),the U.S. had
no further plans to seek additional data exchange from new
VWP countries.

Data Privacy
--------------


7. (C) Acknowledging that the idea of extending the U.S.
Privacy Act to non-citizens was unrealistic and probably
unhelpful, Faull noted that the heart of the problem in the
EU has been the belief that the U.S. does not give the same
protection to others as it does to its own citizens. If a
paper could be developed that shows that U.S. practice has
comparable effect, it would help move the debate in Europe
forward, he suggested. Baker wondered if a joint paper,
showing how EU law is limited and explaining non-citizen's
rights under U.S. law, might be a better approach. Faull
agreed to explore the idea.


8. (C) Baker asked about the prospect of concluding work on
data privacy in the HLCG in 2008, and registering the
conclusions by an exchange of letters. Faull thought that
might be possible, though the European Parliament was
expecting an agreement and the EC would have to work closely
with it.

PNR Review
--------------


9. (C) Faull and Baker discussed possible modalities for the
periodic review spelled out in the 2007 U.S.-EU PNR
agreement. They agreed that the process should be reciprocal
and include a balance between technical and policy expertise.


10. (U) A/S Baker has cleared this message.
Girard-diCarlo