Noel Dempsey (Meath West, Fianna Fail)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion, provided by Article 1.11 of the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption of the following proposed measure:

Agreement between the European Union and the United States of America on the processing and transfer of passenger name record data by air carriers to the United States Department of Homeland Security, a copy of which proposed measure was laid before Dáil Éireann on 3rd July, 2007.

The motion which has been presented in accordance with Article 29.4.6° of Bunreacht na hÉireann seeks the approval of the House for Ireland to participate in the adoption of a new agreement between the European Union and the United States concerning the collection, storage, use and transfer of passenger name record data. Deputies spoke earlier about the manner in which a copy of the proposed measure was laid before the House. Having checked the matter, I have been assured by my officials that a copy of the agreement was left in the Oireachtas Library last evening and has been there since. I acknowledge and regret that Deputies have not had as much time to consider the agreement as we would have wished. Negotiations between the European Commission and the US authorities concluded this day last week. The matter will be submitted to the Council for decision on 10 July. There has been little time for member states to complete their internal procedures for approval of the agreement. It is essential to ensure a new agreement is in place before the current agreement expires on 31 July to ensure there will be a continued legal basis for the transfer of passenger name record data to the US authorities. Deputies will appreciate that the factors I have mentioned were outside my control. While it is regrettable that the House does not have more time to consider this relatively short agreement, I am glad it has an opportunity to debate it now.

I would like to remind Members of the background to the agreement. The events of 11 September 2001 and terrorist attacks in other parts of the world, most recently in Glasgow, have made us aware that terrorism is a global problem which affects Europe and the United States. The United States radically revised its internal security procedures following the events of 11 September 2001 with a view to protecting its citizens from terror attacks. The Irish authorities share the concerns of the US authorities in this regard. The events of 11 September 2001 and the recent incident at Glasgow Airport emphasise the particular vulnerability of the aviation sector. Enhanced airport security has been noted throughout the world since 11 September 2001. As part of the anti-terrorism security measures they introduced following the events of that day, the US authorities enacted legislation providing that air carriers operating flights to, from and within US territory have to allow the US authorities access the data in their reservation and departure systems. The information in question is known as passenger name record, PNR, data.

The identification of potentially high risk passengers by means of PNR data analysis gives states and aircraft operators the capacity to improve aviation security, enhance national and border security and prevent and combat terrorist acts, related crimes and other transnational serious crime, including organised crime. It protects the vital interests of passengers and the public. PNR data help to expedite customs and immigration at airports and facilitate and safeguard legitimate passenger traffic. Irish and European carriers have been submitting PNR data to the US authorities since May 2004. Two agreements between the European Union and the United States have provided the legal basis for the transfer of records since. The first agreement which was signed in May 2004 was subsequently referred to the European Court of Justice by the European Parliament. The court found that the legal basis for the Council decision that had approved the conclusion of the agreement was not appropriate. A new interim replacement agreement was then negotiated. The State's participation in the adoption of that agreement was approved by both Houses of the Oireachtas in October 2006. This interim agreement is due to expire on 31 July next.

On 27 June the US authorities and the European Commission, acting on a mandate agreed by the member states of the European Union, completed their negotiations on a new long-term agreement on the processing and transfer of PNR data by air carriers to the US authorities. The agreement was considered by the EU Committee of Permanent Representatives on 29 June and it is proposed that it will be submitted to the Council for approval on 10 July. The new agreement which will provide a long-term solution for the processing and transfer of PNR data will be valid for seven years. It will ensure legal certainty for a considerable period. Agreement was also reached on an exchange of letters between the United States and the European Union. The US letter gives details of how the US Department of Homeland Security handles the collection, use and storage of PNR data received from air carriers, referred to in the letter as "assurances". The EU letter acknowledges receipt of the US letter and states the assurances explained in the US letter allow the European Union to deem that the Department of Homeland Security ensures there is an adequate level of data protection for the purposes of the agreement.

The agreement contains important commitments by the Department of Homeland Security on how it will handle PNR data in respect of data protection. I will outline the main differences between the existing interim agreement and the new agreement, as well as the key elements of the new agreement. Like the previous agreements on this issue, the new agreement aims to prevent and combat terrorism and other serious crimes that are transnational in nature. The number of EU PNR items to be collected has been reduced from 34 to 19 through a process of rationalisation. References to "undertakings" which had been part of the existing interim agreement will be deleted, to be replaced by an exchange of letters between the European Union and the United States. The US letter will outline how the US Department of Homeland Security will collect, use and store PNR data. The period of retention of records by the Department of Homeland Security will increase from three and a half years to seven for records on active status. The further retention period of eight years for data in a dormant status is unchanged. Such data may be accessed in response to an identifiable case and on the approval of a senior official in the Department of Homeland Security who has been designated by the Secretary of Homeland Security. Sensitive data such as data relating to ethnic origin or religious beliefs will be filtered and deleted by the Department of Homeland Security unless it is required in exceptional cases, for example, if the life of a data subject or others could be imperilled. The Department of Homeland Security will extend to EU PNR data the protections in the US Privacy Act which provide redress for data subjects who seek information on, or correction to, their PNR data. The extension of these protections to non-US citizens is new and did not feature in the existing agreement.

The agreement which will last for seven years may be suspended or terminated at any time by either party. There is a provision in the agreement for a periodic review. A reciprocity clause has been included in the agreement to the effect that if a PNR system is implemented in the European Union or in one or more of its member states that requires air carriers to make available to authorities PNR data about people whose travel itinerary includes a flight to or from the European Union, the Department of Homeland Security will, on the basis of reciprocity, actively promote the co-operation of the airlines within its jurisdiction. I am conscious there is a balance to be struck between public security considerations and privacy rights of the individual citizens in this matter. The European Commission, in line with the mandate it received from member states, sought to strike that balance in the negotiations with the United States authorities.

Important new protections for data and avenues of redress for persons seeking information about, or correction of, PNR data are provided in the new agreement, which is a welcome development for EU citizens. The new agreement will also provide carriers operating services between the EU and the US with the legal certainty they require to enable them to continue to transfer the data required by the US authorities, thus facilitating the continuation of transatlantic air services.

As I said, it is regretted that the very recent conclusion of the negotiations on the agreement, combined with the scheduling of the European institutions and the Houses of the Oireachtas, has not afforded Members much time to consider this issue. I commend the motion to the House.

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