12/02/2011 11:17 am ET

New Air Passenger Data Deal Between U.S., E.U. Tightens Privacy Protections

WASHINGTON -- A new agreement between the United States and the European Union that will tighten privacy protections for sharing air passenger data is being hailed by Europeans as a big improvement over despised Bush-era rules that many believe trampled their rights.

Although the Obama administration had hoped to keep the current anti-terrorism rules in place, the new deal will allow the Department of Homeland Security to continue vacuuming up information on the 22 million Americans and Europeans, as well as other foreign nationals, who cross the Atlantic every year. It will replace an interim 2007 U.S.-E.U. agreement on the use of passenger name records (PNR).

The current system is "operationally effective and has a pristine record on data and privacy protection. We didn't think there was a need for a new agreement," David Heyman, the assistant homeland security secretary for policy, told The Huffington Post. "But given the [2009 Lisbon Treaty] changes and concerns about privacy and data protection among some Europeans, the U.S. undertook negotiations to reinforce our longstanding and vital alliance with Europe to fight transnational threats."

Europeans have enshrined the right to "private and family life" and the "protection of personal data" in their founding document of union and have been wary about sharing information with the U.S. ever since Congress passed the Patriot Act in 2001. After the Lisbon Treaty gave the European Parliament more say over international agreements, it demanded that the PNR arrangement be renegotiated.

Congress, in responding to the 9/11 attacks, mandated that air carriers provide PNR data on every flight coming into the U.S. PNRs consist of information that travelers provide when they book their flights; the records have 19 data points, including itinerary, date of birth, payment method, contact information, seat assignment and traveling companions. The Department of Homeland Security runs the records through terrorist watch lists and other databases to help identify known threats early and spot others who adopt suspicious behaviors.

Officials say PNR data has aided many recent high-profile terrorism investigations, including those involving David Headley, who pleaded guilty to planning the Mumbai terrorist attack; Faisal Shazad, the would-be Times Square bomber; and Najibullah Zazi, who admitted to a plot to bomb New York City subways. PNRs also have been used in nearly every human-smuggling case involving air travel.

"The EU data privacy advocates have traditionally sought to make it harder to connect the dots -- exactly the opposite of what the 9/11 Commission recommended," said former Bush Homeland Security Secretary Michael Chertoff, who worked out the current framework. "These 'improvements' will make it somewhat more difficult to detect threats. But it could be a lot worse."

Although both sides have initialed the new agreement, it won't replace the existing rules until the Council and Parliament of the European Union approve it. Given the current euro financial crisis, that may not happen until next year.

The new agreement is crafted to allay what one senior U.S. official called "a huge lack of trust that evolved" during the Bush years, thanks to the Iraq war, extraordinary renditions and the Guantanamo Bay prison, and that has carried over into the current administration.

Among the changes:

Clearer limits. PNR data will be used only to fight terrorism and serious transnational crimes, such as drug smuggling and human trafficking, that are punishable by three or more years in prison. The goal is to end the use of PNR data in investigating minor crimes or immigration violations. Still, U.S. officials will have some wiggle room since PNR data may also be used "on a case-by-case basis" and "to identify persons who would be subject to closer questioning or examination upon arrival to or departure from the United States or who may require further examination."

Shorter record retention. The Department of Homeland Security is currently authorized to store identifiable PNR data for 15 years, the last eight in a dormant database. The new deal renders PNR data anonymous after six months and moves it to a dormant database after five years. Except for records linked to terrorism, data storage will be limited to 10 years.

U.S. officials argued unsuccessfully to retain active records for five years. "The Europeans were fixated, very much focused on the retention periods," Heyman said, insisting, "In the end, we added in privacy protections but did not limit our operational ability."

Legal certainty for air carriers. The new rules require airlines to send, or "push," PNR data to U.S. authorities. Currently, Homeland Security is allowed to "pull" data directly from airlines' reservation systems.

Safeguards against profiling. Homeland Security will be required to use automated systems to filter out and mask sensitive data, such as racial or ethnic origin, that could be used to illegally profile passengers.

"We're quite satisfied with the overall compromise and balance," said Michele Cercone, spokesman for European Commissioner for Home Affairs Cecilia Malmström. "E.U. citizens will have the same protections as U.S. citizens. We went as far as we could."

But Marc Rotenberg, president of the Electronic Privacy Information Center in Washington, called the new agreement "very problematic" from the European perspective. Despite language in the deal that states all individuals, regardless of nationality, will be able to correct or erase PNR data and to seek administrative or judicial redress in American courts, the Privacy Act of 1974 still applies only to U.S. citizens and "permanent resident aliens."

"My expectation is there is still likely to be a huge political battle" when it reaches the European Parliament, Rotenberg said. "I don't think this is going to resolve the problems."

The text of the agreement can be read here.