COM/2010/0252
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European Union (EU) - United States of America (US) international agreement on the protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal offences, including terrorism, in the framework of police and judicial cooperation in criminal matters [ change log] [ oeil]
see also: COM/2010/0492
General
The EU plans to negotiate a comprehensive framework agreement with the US government that regulates the protection of personal data once it has been transferred in the context of law enforcement and security cooperation. The agreement is envisaged as the binding framework for all specific data transfer agreements such as SWIFT and PNR. According to Commission plans, it will automatically change SWIFT and PNR agreements after 3 years if they are not adapted by then.
Responsibilities
COM: Viviane Reding, DG Justice. EU Negotiator: Françoise Le Bail, Director-General of DG Justice
Council: Presidency
EP (Committee on Civil Liberties, Justice and Home Affairs / LIBE):
- Rapporteur: Jan Philipp Albrecht (Greens/EFA)
- Shadow Rapporteurs: Alexander Alvaro (ALDE), Stavros Lambrinidis (S&D), Nuno Melo (EPP), Timothy Kirkhope (ECR), Rui Tavares (GUE)
US Side: Department of Justice (lead) and Department of State
US Negotiator: Bruce Swartz, Deputy Assistant Attorney General, DoJ
Current Status
Negotiations have officially started on 28 March 2011.
The Commission has adopted the draft negotiation guidelines on 25. May 2010. They are "EU restricted", but an earlier version has leaked on Statewatch.
The Council has adopted the mandate on 3 December 2010. The main conflicts in Council were about the application of the agreement to existing and future bilateral data sharing agreements between EU member states and the US. Another conflict line was over the question if it should be a mixed or an EU-exclusive agreement.
The European Parliament with a very broad majority adopted a resolution on 11 November 2010 which marked the red lines (article 10 and 11). It had been tabled as a joint resolution by EPP, S&D, ALDE, Greens/EFA, ECR and GUE/NGL. There was also one paragraph on the agreement in the same day's EP resolution on the transatlantic summit. The LIBE committee chair on 24 Novcember 2010 sent a letter to Council which highlighted the respective paragraphs.
The European Parliament held a LIBE committee hearing on 25 October 2010: Agenda and other documents, poster, Recording
Speaking notes from the hearing:
- Ambassador William E. Kennard, United States Mission to the European Union
- Marc Rotenberg, Executive Director, Electronic Privacy Information Center (EPIC), Washington, D.C.
- Claire Gayrel, Researcher, University of Namur (FUNDP)
- Dr Patrick Breyer, Arbeitskreis Vorratsdatenspeicherung (Working Group on Data Retention), Germany
- Dr Patrick Breyer: Contribution to the EC's consultation on a possible EU-US agreement on personal data protection and information sharing
- Troels Oerting, Assistant Director of Europol
- Professor Douwe Korff, London Metropolitan University,
- Professor Douwe Korff: background note on US law
The EP rapporteur is producing a series of working documents. Already out:
- Working Document 1 (on EU legislation in this field)
- Working Document 2 (on US legislation in this field)
- planned: WD3 on the legal options on both sides for the form of the agreement
- planned: WD4 on the envisaged content of the agreement
The European Parliament did a delegation trip to Washington DC in April 2011 to discuss, inter alia, the agreement with members of the US Congress, with the US administration, and with independent experts.
The agreement will also be discussed on a high level at the opening plenary of the Computers, Freedom and Privacy conference in Washington DC on 14th June 2011.
Background / previous work
The negotiations will build on the informal „High Level Contact Group“ (HLCG), which since 2006 had been working on common data protection principles. The final HLCG report was published in 2008 and updated in 2009. The good thing about the HLCG report is that they agreed on the principles at all. The bad thing is that there are lots of exceptions and not even a common definition of "law enforcement". The EDPS has given his opinion on the HLCG report. The whole story of the HLCG is documented in the MPI study "transatlantic information sharing at a crossroads" (January 2010).
The Commission held a public consultation on the agreement until 12 March 2010. The submissions are available online.
