Swedes Propose Seminar to Break HLCG Redress Roadblock

UNCLAS SECTION 01 OF 02 STOCKHOLM 000408 STATE FOR EUR/NB, EUR/ERA, EUR/PGI, S/CT DHS FOR MCALLAHAN JUSTICE FOR NLIBIN SENSITIVE SIPDIS E.O. 12958: N/A TAGS: KJUS EUN PGOV PREL KCRM SW SUBJECT: Swedes Propose Seminar to Break HLCG Redress Roadblock Ref: Berlin 0523 ¶1. (SBU) Summary. Department of Homeland Security (DHS) Chief Privacy Officer (CPO) Mary Ellen Callahan met with her counterparts at the Swedish Ministry of Justice (MOJ) to discuss how to make progress on the final issue relating to the High Level Contact Group's agreement on the principles for U.S.-EU transatlantic data privacy standards for law enforcement and national security. As a solution, Sweden proposed a seminar to discuss how U.S. privacy and freedom of information laws already provide key legal protections to non-U.S. citizens. Callahan also visited a new Swedish data privacy protection commission to see their privacy oversight model. End Summary. -------------- Swedish Propose Comparative Privacy Law Seminar -------------- ¶2. (SBU) Swedish MOJ officials invited CPO Callahan to Stockholm to discuss ways to break a stalemate in ongoing discussions of the High Level Contact Group (HLCG) and its efforts to agree to data privacy principles in the law enforcement and national security context between the EU and the United States. To date, the HLCG has agreed to a series of non-binding but guiding data privacy principles for the implementation of any information sharing agreement. The remaining issue is whether or not European citizens would have redress in U.S. courts for potential violations of the use of their personal information. CPO Callahan and Shannon Ballard (Director for International Privacy Policy) met with a small group of Swedish MOJ officials, including Lars Werkstrom (Director General for International Affairs),Dr. Anna-Carin Svensson (Director, International Section, Division for Police Issues),Tora Wigstrand (Director, Division for EU Affairs),Julia Mikaelsson (Deputy Director, Division for Police Issues),and Annika Waller (Deputy Director, Police Legislation, Division for Police Issues). ¶3. (SBU) Continuing her effort to correct misconceptions among some EU counterparts regarding U.S. privacy law (reftel),CPO Callahan refuted the long-standing myth that non-U.S. citizens have no redress in U.S. courts, which she lamented as a show of bluster by some European interlocutors. She first noted that two laws guide the use of personal information: the Privacy Act and the Freedom of Information Act (FOIA). The Privacy Act relates to the use of personal data by federal entities and provides statutory privacy rights to U.S. citizens and Legal Permanent Residents (LPRs),but does not cover visitors or aliens. As such, non-U.S. persons lack "standing" in American courts to sue for perceived violations of the Privacy Act. In contrast, the FOIA relates to the access to and processing of records including those with personal information and does permit non-U.S. persons to sue in court. Callahan explained that the vast majority of personal information held by the USG on non-U.S. citizens consists of DHS traveler data. She explained that DHS assumes that U.S. and non-U.S. citizen personal data sources are intermingled (i.e., "mixed systems"). DHS policy regarding privacy protections afforded to non-U.S. persons for information collected, used, retained, and/or disseminated by DHS in these "mixed systems" is the same as with U.S. citizens. All individuals, regardless of nationality, are given the same protections of both the Privacy Act and FOIA at the agency level. In practice, she emphasized, the protections offered to U.S. and non-U.S. citizens are virtually the same. ¶4. (SBU) Expressing sincere appreciation for Callahan's analysis, the Swedish MOJ representatives suggested the general idea of a seminar or workshop on comparative EU-U.S. privacy law to help move the discussion on redress to a conclusion. They maintained that a public discussion would help educate the appropriate representatives of the EU Member States and lead to a focused discussion on the redress issue. Callahan noted that the idea sounded promising, but stressed the need for some concrete outcome from the workshop and indicated the importance of EU Member State ministerial participation to force the participation of the relevant national stakeholders as well as cooperation of the Data Protection Authorities of EU Member States. Callahan promised to review the idea and respond to the Swedes shortly. (Comment: The redress issue will be a top priority for next week's July 9-10 EU-U.S. Informal Justice and Home Affairs Senior Level Meeting in Stockholm. Callahan briefed the U.S. delegation to the JHA and supported the workshop with certain conditions. End Comment.) -------------- SIN Responsible for Integrity -------------- STOCKHOLM 00000408 002 OF 002 ¶5. (SBU) CPO Callahan also visited the Swedish Commission on Security and Integrity Protection (known at SIN in Swedish),which was formed in January 2008 to provide better oversight of the use of personal data by law enforcement officials, including the use of secret surveillance. SIN was established in response to a 2006 ruling by the European Court of Human Rights that criticized Sweden for not providing a remedy for abuses of secret surveillance which was found to be inconsistent with that court's understanding of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Commission consists of a committee of political appointees from the leading political parties and a professionally staffed Chancery which handles the daily operations of the Commission. The Chair of SIN, Dr. Anders Eriksson, explained the Commission's ability to investigate how law enforcement agencies use personal information in operations. The Commission can begin an investigation on its own initiative or respond to a complaint from the public. Dr. Eriksson noted that in the case of data obtained from foreign sources, the Commission focuses only on how the Swedish law enforcement personnel use the information. Dr. Eriksson noted the possibility that SIN would receive additional oversight authority over other controversial privacy issues. ¶6. (SBU) CPO Callahan noted that the DHS Privacy Office handles many of the same oversight functions at the agency level and expressed her appreciation at the opportunity to learn more about SIN's operations. She suggested that a professional staff member from the Commission might be an appropriate candidate for an exchange visit to DHS Privacy. KIRKCONNELL