VWP: AUSTRIANS SEEK FURTHER DATA PRIVACY

C O N F I D E N T I A L VIENNA 001431 SIPDIS DEPARTMENT FOR CA; DHS FOR VISA WAIVER PROGRAM OFFICE; FBI FOR TERRORIST SCREENING CENTER E.O. 12958: DECL: 11/02/2024 TAGS: CVIS PREL PGOV PTER AU SUBJECT: VWP: AUSTRIANS SEEK FURTHER DATA PRIVACY CONSULTATIONS REF: VIENNA 1125 Classified By: Econ/Pol Counselor Dean Yap. Reason: 1.4(b) and (d) ¶1. (U) Amb. Helmut Tichy, MFA Deputy Legal Advisor, reported to Econ/Pol Counselor October 22 that an inter-ministerial meeting on Oct. 22 had not agreed to seek a negotiating mandate for conclusion of PCSC or HSPD-6 agreements. The Austrian Data Protection Office (DPO) continues to have concerns about data privacy issues in the context of the PCSC agreement which it believes should be addressed in pre-negotiation experts' discussions. In a follow-up meeting on Oct. 29, with DPO Director Souhrada-Kirchmayr present, the Austrians proposed the week of Dec. 14 for consultations in Washington, providing the agenda in para 2 below and some initial questions as reported in para 3. In advance of consultations, the Austrian side will provide more detailed questions and would also welcome U.S. suggestions as to the program for consultations, ¶2. (U) Text of Austrian Note on Proposed Consultations Begin Text In general, the visit by Austrian experts to the relevant US authorities and agencies concerned shall aim at jointly elaborating on those specific questions raised by Austrian authorities that would need more thorough elaboration from the Austrian point of view, particularly on questions relating to the functionality, data security and documentation in the exchange of data. Austrian authorities will be more than glad to receive the (sic) advice and proposals from the United States for setting up the agenda for the mission. Meetings with the following agencies/authorities are deemed useful in this respect: -- Meeting with data protection experts of MoJ and DHS; -- Meeting with "Chief Privacy Officers" in DHS and eventually (sic, means "perhaps") in other agencies; -- Meeting with representatives in DHS in charge of the Traveler Redress Inquiry Programme and/or export for similar programmes of other agencies dealing with data proceeding (sic) and data storing for the respective agency; -- Meeting with DHS/other agencies experts responsible for SORN (Federal Register System of Records Notice); -- Visit to central office for fingerprints in FBI and DHS; -- Visit to central office for DNA-profiles in FBI; -- Visit to Terrorist Screening Centre. End Text ¶3. (U) In the Oct. 29 meeting, MFA and ODC representatives affirmed that they had received sufficient information on the U.S. data protection regime in general, but still had specific questions about its implementation in the PCSC context as well as a desire to observe the data management system in action. In that regard, they raised the following initial questions: -- Why is it necessary/advantageous to hold data in a U.S. data base rather than allow electronic access to an alternative data base? -- Do options exist for Europol or INTERPOL to serve as an instrument for sharing data? (ODC representatives noted that this was discussed as an option for the EU's Pruem agreement, but rejected by Germany.) -- How are redress requests handled in practice and what is the role of the Chief Privacy Officer in them? -- What is the meaning and impact of the exemptions to redress procedures for some law enforcement data? -- How does the SORN system operate in practice? -- How has the data protection clause in the U.S.-EU EUROJUST agreement been applied? How has EUROPOL implemented it? The Austrians indicated that when dates for the consultations are fixed, they can provide a more refined list, indicating which issues they would like to discuss during which part of their program. ¶4. (C) Econ/Pol Counselor stressed that Washington had hoped after the last round of consultations that the Austrian side would be able to obtain a negotiating mandate. MFA Dep. Legal Advisor Tichy stressed that the outstanding questions were, in the Austrian view, "technical" preliminaries and that when they were resolved, obtaining a negotiating mandate would happen quickly. He could not, however, guarantee that a mandate would be sought after another round of consultations. ODC Director Souhrada-Kirchmayr concurred. ¶5. (C) Comment. The interaction between MFA and ODC reps during the Oct. 29 meeting made clear that the MFA is pushing for rapid action. Tichy noted twice that, although the ODC's agenda was very busy, they had cleared the week in December in order to maintain momentum on the issue and that, while mid-December might be also difficult for the U.S., it should be seen as Austria's acknowledgment of the seriousness of the issue and desire to resolve it. Should December not prove do-able, the Austrians would be open to a U.S. proposal for consultations in January, Tichy added. ¶6. (C) Comment Cont'd. Embassy is aware of the difficulties and uncertainties in meeting the Austrians' desired timetable. We believe it would be an error, however, to assume that these difficulties and uncertainties mean the Austrian Government does not wish to conclude PCSC and HSPD-6 agreements or to comply with the VWP. Embassy also understands that Washington agencies are engaged in talks with other VWP countries in mid-December. However, continued constructive USG engagement with the Austrians helps to limit the extent to which they can play a spoiler role on these issues in Brussels. It also prepares the groundwork for a high-level political approach to the Chancellor that could well be needed to move the Austrians into formal negotiations. That is, we do not believe that the ODC can block bilateral negotiations with the USG indefinitely, but they will able to do so longer if we decide not to engage with the GoA. Working the GoA effectively requires making progress in the broader EU context, which will have a positive effect here. But it also means engaging with the GoA directly, so we therefore strongly recommend hosting the Austrians on their preferred December dates or offering alternative timeframes in January. End Comment. EACHO