German NGO Working Group on Data Retention today published two applications to the European Court of Justice by the European Parliament contesting the transfer of PNR data to the US.^[1] According to the arguments set forth in the documents, both the indiscriminate collection of air passenger data in the US as well as a similar proposal by EU commissioner Franco Frattini are incompatible with the air travellers' fundamental rights.

The applications allege "a violation of fundamental rights and a violation of the principle of proportionality". In detail, the following arguments are put forward:

1. The blanket collection of all PNR data violates the basic right to respect of our private life and protection of our personal data. The finality of the data retained is not precisely defined; a "blank cheque" is given to the authorities permitting an unforeseeable use of the data for other purposes.
   
2. The aim to enhance the prosecution of crime is incompatible with the reason for which the data is being collected, namely for the handling of air travel. The use of the data is not restricted to combating terrorism, either.
   
3. Sensitive data regarding the passengers racial and ethnic origin, political attitudes an religious conviction are not effectively protected from access.
   
4. The rights of access to stored data and to have data corrected, deleted and blocked are not guaranteed.
   
5. The right of every person to a judicial remedy for any breach of their rights is not warranted.
   
6. Data can be passed on to an indefinite number of other authorities and foreign states where they are no longer afforded any protection. The data may not only be used for the prosecution of crime but also, for example, for purposes of a "passenger screening system", that is to assign "risk values" to travellers.
7. An excessive number of data is being collected for an excessive period of time, violating the principle of proportionality. Personal data may only be retained if the respective passenger is alleged to have committed an offence. The other passengers' data must be deleted immediately after passing border controls.

With regard to the applications that have now been published, the Working Group on Data Retention calls upon Germany's federal government to quit negotiations on the principally flawed plan to effectuate a blanket retention of air traveller's data in Europe. Social democrats and conservatives are urgently requested to introduce a parliamentary order preventing the violation of our constitution by adopting the EU proposal.

Jurist Patrick Breyer of the Working Group explains: "The applications of the European Parliament could basically be copied to have the European plan annulled in court. The principle of proportionality prohibits the mass collection of innocent air traveller's data after passing border controls. It is disproportionate to collect everybody's data just because in rare cases, it could be useful to the authorities. Border authorities already have access to the data they need. The new plan is superfluous and can not be put into practise where European fundamental rights apply. In its decision concerning the mass scanning of vehicles' number plates, the German Constitutional Court earlier this month confirmed that data concerning citizens who are not wanted by the authorities must be discarded immediately."^[2]

Background information:

After refusing to release the documents last year, the EU commission could now be convinced to reverse its decision with the help of the European Ombudsman. The documents now released were submitted by the European Parliament to the European Court of Justice in 2004 and lead to the annulment of two decisions legalizing the transfer of PNR data to the US.^[3] Since the Court could base its judgement of formal grounds and did not need to examine the compatibility with human rights, EU member states - chief negotiator being Germany's conservative Minister of the Interior Dr. Wolfgang Schäuble - consequently agreed on a formally correct but even more excessive treaty with the United States. The treaty, however, only applies to passengers travelling to the US.^[4]

Yet last year conservative EU commissioner Franco Frattini introduced a bill according to which the air travel of all European citizens would be registered and retained in databases for 13 years.^[5] The plan would affect all air travel between the EU and third countries. With regard to the already fiercely contested directive on the blanket retention of telecommunications data, the German Working Group on data retention commented that "the next unconstitutional retention of personal data is looming on the horizon. If the federal government agrees to the EU plan, we will file a constitutional complaint against it."

References:

1. Applications of the European Parliament dated 2004-07-26: http://www.vorratsdatenspeicherung.de/images/requetes_pe_pnr_2004-07-26.pdf , text version: http://www.vorratsdatenspeicherung.de/images/requetes_pe_pnr_2004-07-26_ocr.pdf .
2. Spiegel Online on the recent ANPR ruling of Germany's Constitutional Court: http://www.spiegel.de/international/germany/0,1518,541025,00.html
3. Press release of the European Court of Justice, http://curia.europa.eu/en/actu/communiques/cp06/aff/cp060046en.pdf
4. Wikipedia, http://en.wikipedia.org/wiki/Passenger_Name_Record#Regulation_of_PNR_transfers_between_the_USA_and_the_European_Union
5. EurActiv.com: EU seeks access to private passenger data to combat terrorism, http://www.euractiv.com/en/transport/eu-seeks-access-private-passenger-data-combat-terrorism/article-168160