Seanad debates

Wednesday, 4 July 2007

1:00 am

Photo of Donie CassidyDonie Cassidy (Fianna Fail)
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I move:

That Seanad 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 Seanad Éireann on 3 July 2007.

Photo of Tony KilleenTony Killeen (Clare, Fianna Fail)
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This motion under 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 EU and the US concerning the collection, storage, use and transfer of passenger name record, PNR, data.

The events of 11 September 2001 and terrorist attacks in other parts of the world — most recently in Glasgow — have made us even more aware that terrorism is a global problem that affects both Europe and the US. Following 11 September 2001, the US radically revised internal security procedures with a view to protecting its citizens from terror attacks. We share the concerns of the US authorities in this regard.

The events of 11 September 2001 and the recent incident at Glasgow Airport emphasised the vulnerabilities in the area of aviation. Since 11 September 2001, enhanced airport security has been a feature throughout the world. As part of their anti-terrorism measures following these events, the US authorities enacted legislation providing that air carriers operating flights to, from and within United States territory would be obliged to provide them with electronic access to data contained in their reservation and departure systems. The information concerned is described as passenger name records, PNRs.

Identification of potentially high-risk passengers through PNR data analysis provides states and aircraft operators with a capacity to improve aviation security, enhance national and border security, prevent and combat terrorist acts and related crimes and other serious crimes — including organised crime — that are transnational in nature. It protects the vital interests of passengers and the general public. PNR data helps expedite customs and immigration at airports and facilitates and safeguards legitimate passenger traffic.

Since May 2004, Irish and European carriers have been submitting PNR data to the US authorities. There have been two agreements between the EU and US which have provided the legal basis for the transfer of records since then. 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 approving the conclusion of the agreement was not appropriate.

A new interim replacement agreement was then negotiated and 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 2007. On 27 June 2007, the US authorities and the European Commission, acting on a mandate agreed by the member states of the European Union, completed negotiations on a new long-term agreement on the processing and transfer of passenger name record, PNR, data by air carriers to the US authorities. The agreement was considered by the Committee of Permanent Representatives to the European Union on 29 June and it is proposed that it will be submitted to the Council for approval on 10 July. The new agreement will provide a long-term solution for the processing and transfer of PNR data and will be valid for a period of seven years. This will ensure legal certainty for a considerable period.

Agreement was also reached on an exchange of letters between the US and the EU. 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 this letter and states that the assurances explained in the US letter allow the EU to deem that the Department of Homeland Security ensures 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 to handle PNR data in full respect of data protection. The main differences between the existing interim agreement and the new agreement and the key elements of the new agreement are as follows. As with the previous agreements on this issue, the new agreement is aimed at preventing and combating 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. Another element is the deletion of references to the"'undertakings", which had been part of the existing interim agreement, and their replacement by an exchange of letters between the EU and the US with the US letter outlining how the Department of Homeland Security will collect, use and store PNR data. The period for retention of records by the Department of Homeland Security will increase from three and a half to seven years 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 only in response to an identifiable case and on the approval of a senior Department of Homeland Security official designated by the Secretary of Homeland Security. Sensitive data, for example, that relating to ethnic origin, religious beliefs, etc., will be filtered out and deleted by the Department of Homeland Security unless required in exceptional cases, for example, where the life of a data subject or others could be imperilled. The Department of Homeland Security will extend the US Privacy Act protections providing redress to data subjects seeking information about or correction of their PNR to EU PNR data. The extension of these protections to non-US citizens is new and did not feature in the existing agreement. There is also provision in the agreement for a periodic review of how the system is operating.

It is regretted that the scheduling of the European institutions and the Houses of the Oireachtas has not afforded Members much time to consider this issue. 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 the member states, sought to strike that balance in the negotiations with the US 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.

I commend the motion to the House.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I welcome the Minister of State to the House. It is possibly a sign of the changed security times in which we live that we must deal with this motion this afternoon. As the Minister said, the world has changed dramatically since 11 September 2001 and security and counter-terrorism are now much higher up the political agenda than they were heretofore.

Our responsibility is to try to strike the right balance between the need for the maximum possible security for citizens, be they travelling or non-travelling citizens, and protecting in whatever way we can individual human rights. The type of motion before us highlights how difficult it is at times to strike that balance because we are almost putting in place a Big Brother scenario and yet, regrettably, it might be necessary to put in place this type of system. The Minister of State pointed out the background to the introduction of the measures. If this proposal is not agreed, certain doubts might emerge about the viability of much of the commercial airline traffic between Europe and the US.

The main question that arises concerns the balance between maintaining the citizen's right to privacy and supporting whatever measures are necessary to provide maximum security and tackle international terrorism. The recent efforts to cause carnage in the UK show how dangerous the world has become and how much more difficult it is for the security forces to track those intent on causing mayhem and carnage. The passenger record system plays a role in assisting our security forces in countering those who intend to bomb and murder our citizens. While the need to ensure maximum security necessitates these particular measures, we must acknowledge how rushed the order is with, regrettably, not much time for debate on it. We must acknowledge that the gap in providing security and protecting the citizen's rights is getting narrower. The need to provide security against terrorism to some degree is infringing on traditional, hard-won and dearly held rights. We will have to engage in a more in-depth debate on how to provide for the security of our country and the Continent without infringing on the rights of the individual citizen.

Do the US authorities exchange data with the EU? Has the EU requested such a reciprocal arrangement? I support the overall thrust of the order. In these challenging times in which global terrorism has become an industry in itself, we must ensure the maximum security of our citizens. While airline passengers will be discommoded by this arrangement, it will make life safer for those travelling. With a degree of reluctance and as I am unable to come up with a better solution, I support the motion.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I should like to share my time with Senator Mooney, with the agreement of the House.

I welcome the Minister of State, Deputy Killeen, to the House and congratulate him on his recent appointment. I should also like to welcome his officials. I congratulate those Senators nominated recently by the Taoiseach. I note that some of them made their maiden speeches today. I hope this is not my final speech in the Seanad.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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Safe seat.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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The terrorist attacks on 11 September 2001, 9/11, in New York and Washington DC have led to major changes in the way security matters are handled throughout the western world, not least in the United States. The need to monitor and control internal and international flights into, out of and over the United States has required the collection and analysis of vastly greater quantities of data relating to passengers on aircraft. The principal beneficiary is the United States but others who benefit are the passengers and aircraft crews, a significant number of whom come from this country as well as other member states of the European Union.

The US and other governments have long used passenger lists for screening passengers and persons already on watch lists before they depart on a journey. Since 11 September 2001, the focus has shifted towards thwarting potential terrorists who are thus far unidentified by using more of the detailed information collected by airlines and travel agencies when an individual books a flight. These passenger name records, PNRs, contain information such as travel itineraries and payment details that can be analysed in conjunction with current intelligence to identify high risk travellers before they board these planes.

The current EU-US interim agreement on the use of PNR data expires on 31 July. This interim agreement was approved by the Dáil and Seanad on 11 October 2006, as required under Article 29.4.6° of the Constitution. It is important that no legal vacuum is allowed to arise on expiry of the current agreement so that this might affect the ability of carriers to continue to operate transatlantic services.

I wish to pay tribute to the Leas-Cheann Comhairle for the role he has played in the Seanad, to wish him and all my colleagues well towards their re-election and to convey my best wishes to those not seeking re-election.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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I should like to thank my friend and colleague, Senator Wilson, for agreeing to share his time. I want to reiterate and echo all he has said as regards welcoming the Minister of State, Deputy Tony Killeen, and his officials. I congratulate the Minister of State, as well, on his new appointment. I extend my best wishes to my colleagues on all sides of the House, including the new Senators, some of whom took the opportunity to make their maiden speeches today, as Senator Wilson has indicated. I, too, hope we can continue to make our contributions in this House, post election, God willing.

The single greatest foreign policy disaster experienced by the United States in its recent history has been the Iraq war, as regards the impact it is having on the body politic in America, the manner in which it has divided society there and the continuing plummeting of President Bush in the opinion polls. He is now seen, perhaps, as the lamest of lame ducks as he enters the last 18 months of his presidency. It is not a great cause for celebration either for me or the vast majority of Irish people who have strong family, ethnic, social and commercial links with the United States.

It is probably important to put on record that this initiative as regards the PNR and the exchange of important data on passenger lists has nothing whatever to do with the Iraq war. These initiatives, as Senator Wilson has indicated, have all come from the 11 September 2001 disaster, the setting up of the Department of Homeland Security and the increasing pressure placed not only on the American Administration but on governments worldwide as a result of the increase in terrorist activities by al-Qaeda. Anybody with any doubts that there should be a continuing strengthening of security laws and improvements in the exchange of information between friendly governments cannot help but reflect on what happened in London at the weekend. We are so close to the United Kingdom and it is a frightening scenario that the UK is on severe high alert and can expect terrorist hits at any time, which could mean the loss of innocent lives. We must also remember our friends and colleagues in the British Government and parliamentary system as well as our relatives and friends living in the UK at this time.

I am particularly encouraged — I am grateful to one of the Minister of State's officials for confirming this — that data protection in the US is much stronger than in Europe. As Members will be aware, data protection legislation was initiated and passed in this House that has proven to be of great benefit to the consumer in ensuring that his rights and privacy are respected. I therefore welcome the Government's decision to make the interim agreement permanent in concert with its EU partners and following on the Commission's directive in this regard.

The measure will have no impact whatever on the overwhelming majority of passengers travelling to and from the United States. The information we have ordinarily been giving when filling out the various transit cards on our way to the United States is the information that will be stored. There are 19 issues encompassed by the measure. They have not been itemised by the Minister of State but there is no need to do so because they are all within the same data area. The reduction to 19 from 35, as listed in the original interim measure, is welcome.

I am heartened by the fact that the European Union held out very strongly against US pressure from the very beginning of this process to ensure the data it has agreed to exchange are pertinent and relevant. The storage time has been defined, although it has been increased to seven years, and a further eight years for relevant data. Having said that, I am considerably heartened by the fact that the US data protection measures are very consumer oriented. Regardless of one's political criticisms of the United States, one will agree it is a free, open and democratic society and may have the most impressive freedom of information legislation in the world. We might reflect on how we apply our own freedom of information measures when we are returned to the House. That is an issue for another day. I welcome the measure under discussion.

I welcome the Minister of State, Deputy Tony Killeen. He has been appointed to a very challenging position but those of us who have known him over a long period can testify to the fact that he has good Clare bones in his body and will be quite capable of rising to all the many challenges that will face him over the years. I thank the Leas-Chathaoirleach for his courtesy and fairness in the Chair. Like all my colleagues in this House, I wish him every success in the forthcoming election.

Photo of Brendan RyanBrendan Ryan (Labour)
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Cuirim fáilte roimh an Aire agus tréaslaím leis. Tá an ardú céime atá faighte aige le déanaí agus a fuair sé roimh an todhchán tuillte aige le blianta. Tá súil agam go n-éireoidh go geal leis.

Am I looking at the same proposal that everybody else is talking about? We have limited information. The measure was laid before the Houses of the Oireachtas yesterday and we are agreeing on it today. I have not had the chance to read it. If somebody wants to make the point that that is my fault, so be it, but it is not the way the Houses should do their business. The only detail we have is what is in the Minister of State's script. While not reflecting on him personally, it is full of vague generalisations and platitudes rather than assurances.

The measure represents the allowance by all the governments of the European Union of a gross and one-sided invasion of the privacy of citizens of the Union travelling to the United States. We have made no similar request of the United States. This clearly implies that the possibility of a threat to the United States from Europe-based travellers is deemed vastly greater than the possibility of a threat to the citizens of Europe from anybody based in the United States. The United States had Congressmen who yahooed, so to speak, along with representatives of the provisional IRA when we were at the receiving end of IRA terrorism. When we were at the receiving end of IRA terrorism there were members of the United States Congress who ignored that fact and turned them into romantic freedom fighters, yet we did not demand some form of curb on US citizens travelling to Ireland and some sort of extra information about them.

The United States was subjected to an horrific and profoundly wrong attack. It seems that since then the rules have all changed and this is profoundly wrong. This sort of material should be introduced in this House by way of primary legislation, debated on all Stages in both Houses of the Oireachtas, amended as we see fit and ultimately agreed, instead of being passed through the Oireachtas with any of us who are unhappy with it having five minutes in which to speak against it. Why is it not a reciprocal arrangement? What sort of spinelessness is at the core of the European Council where it would not say to the United States Government, "That is OK. If you believe that is necessary for the security of the United States, then quite clearly it is necessary for the security of the European Union." This is not done because the United States would not tolerate such an intrusion into the privacy of its citizens when they are travelling abroad. The United States has demanded a right to intrude into the privacy of citizens of the European Union, an intrusion it would not allow anybody else to impose upon its own citizens.

I have nothing particular to hide but I know that activists in the environmental movement in the United States have been hauled off planes by officials of the Department of Homeland Security on the grounds of spurious suggestions that they were a threat to the security of the plane. These are people involved in campaigns of non-violence whose basic ethic is non-violent.

The Patriot Act demanded the right to go into every library and find out what books every citizen was reading. We are now supposed to accept the American assurance that this data will be treated with pristine respect for the privacy of people who are not citizens of the United States. This assurance comes from a government which claims it had the right to tap the phones of its own citizens without any reference to any judicial oversight. Why should I trust a government which will not respect the rights of its own citizens? Why should I trust a government that will not allow the same arrangement to apply to its own citizens that applies to everybody else? Why should I trust a European Union — including our own Government — which capitulated before this pressure? The answer to those questions is there is no reason I should trust them and therefore I am opposed to this motion and will call a vote because I believe it is profoundly wrong and an extraordinarily dangerous capitulation to pressure to dilute, not just little details, but the principle that the privacy of individual citizens in a free democracy should not be compromised other than in accordance with primary legislation. The idea of this assault on privacy by means of a statutory instrument, passed through this House on the last day of our sitting and a day after it was laid before the House, is profoundly wrong and I am opposed to it.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I welcome the Minister of State back to the House both in the position he holds now and on his re-election. I delayed speaking until I could hear Senator Brendan Ryan's contribution. I have a very high regard for the Senator's views and he informed me he was very unhappy about this legislation. I am in complete agreement with him that there is a need for primary legislation rather than it being rushed through the House.

Primary legislation would afford the House time to consider the matter and it would be preferable not to have all Stages in one sitting day, as has happened yesterday and today with other matters. It is in the hands of Members to delay this proposal and to return next week because the Minister of State has explained it must be passed by 10 July. I agree with Senator Ryan that it should be delayed but I do not agree with him as regards the other aspect. Thirty years ago we began to implement security measures at airports to stop hijackers. We all objected until we discovered how dangerous it was not to do it.

In recent years, we have not welcomed each extra precaution that has been introduced, such as those where we must show any liquid in a plastic bag before getting on an aeroplane, but when we see what happened in England and Scotland last weekend, we realise that steps must be taken. If those steps are taken by the Americans because they believe them necessary to protect themselves against a potential threat, we must go along with them. We have no choice.

We have not sought reciprocal arrangements from the Americans because we do not require them. My son was travelling on the M6 from the south of England to Holyhead last week when he was passed by the police cars trying to arrest the two people suspected of involvement in the attempted bombings in London. That made me realise that we would pass legislation to ensure we would be protected if we felt threatened.

We must support legislation like this, although I regret the manner in which we are doing so because I do not like rushed legislation of any kind that does not allow us to examine it in detail. The Minister of State has explained that he is making an exception on this occasion and almost apologised for doing so. In future, however, we should take into account Senator Ryan's remarks and, if we have a choice, do this through primary legislation where we give ourselves the time to scrutinise it. We should take steps to ensure legislation we may not like gets the attention it deserves.

I understand the Minister of State's haste, although I regret the speedy passage of this motion. I accept, however, there is a need for it.

Photo of Tony KilleenTony Killeen (Clare, Fianna Fail)
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Gabhaim buíochas leis na Seanadóirí a labhair ar an ábhar seo. I thank Senators for their contributions on this issue.

Senator Bradford mentioned balance and citizens' rights to privacy, expressing his concern that we are rushing this motion through the Oireachtas. I referred to this in my opening remarks; speed is necessary because of the timescale at European level and the fact that the second of the existing agreements expires on 31 July and must be put back in place if it is to continue.

Senators Bradford and Ryan asked about reciprocal arrangements. The agreement states that in the event of the implementation of a passenger name record in the European Union, or in one or more of its member states, that requires air carriers to make available to authorities PNR data for persons whose travel itinerary includes a flight to or from the European Union, DHS shall, strictly on the basis of reciprocity, actively promote the co-operation of the airlines within its jurisdiction.

Also in the letter from the United States, which forms an important part of this agreement and sets out in detail some of the improvements from the two previous arrangements in terms of balance for citizens' rights, there is a commitment to foster police and judicial co-operation, whereby DHS will encourage the transfer of analytical information flowing from PNR data by competent US authorities to police and judicial authorities of the member states concerned and where appropriate to Europol and Eurojust. DHS expects the EU and its member states will likewise encourage their competent authorities to provide analytical information flowing from PNR data to DHS and other US authorities concerned.

Yesterday we saw the importance of co-operation between police services in combating the drugs trade and other criminal activity. We must ensure important information on crime is shared between authorities.

I thank Senators Wilson and Mooney for the points they made and for their support for the measure. This is a complex and sensitive subject where we must strike a balance between public security considerations and a need to protect the rights of citizens. European citizens are as concerned as their American counterparts about the protection of human life and the prevention of international criminal activity. This is the third agreement between the US and the EU on passenger name records since 2004, and Ireland participated in the adoption of its predecessor. While it would be preferable if there were no need to collect such data, it has been accepted by airlines and passengers that it is necessary to assist in preventing and combating terrorism and international crime.

In the course of the negotiations on this new agreement, the European Commission responded effectively by arranging an exchange of letters setting out precisely the scope of the agreement and extracting assurances from the US authorities on the use of the data and their safe custody. The 19 categories are set out in the file laid before the House yesterday. Efforts by the European Commission to secure a high level of data protection in this new agreement have had a positive outcome.

The comparisons between the current interim agreement and the new agreement are favourable in the context of the balance mentioned by some Senators, with the number of data items being reduced from 34 to 19 through a process of rationalisation. Important new protections for data and avenues of redress for people seeking information about or correction of passenger name record data are provided in the new agreement, which is a welcome development for US citizens.

Ireland's participation in the adoption of the agreement together with our European partners will ensure continuity and certainty for airlines and passengers on transatlantic flights, and I commend it to the House.

Question put.



Photo of Paddy BurkePaddy Burke (Fine Gael)
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Will the Senators claiming a division please rise?

Senators Brendan Ryan, Mary Henry and Kathleen O'Meara rose.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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As fewer than five Members have risen I declare the question carried. In accordance with Standing Orders the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Question declared carried.

Sitting suspended at 1.55 p.m. and resumed at 2.05 p.m.