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Rule of law, reciprocity, necessity and proportionality are absolutely needed to reach any banking data transfers' agreement between the EU and the U.S., MEP Jeanine Hennis-Plasschaert said

Parliament refused on 11 February 2010 to give its consent to the EU's interim agreement on banking data transfers to the USA via the SWIFT network (Terrorist Finance Tracking Program - TFTP), amid concerns for privacy, proportionality and reciprocity. This move renders the text signed between the U.S. and the 27 EU Member states legally void. MEPs propose to negotiate a new agreement.

According to a European Parliament's news release, rapporteur Jeanine Hennis-Plasschaert (ADLE, NL), said that the use of bank data was necessary to fight terrorism but that "the Council has not been tough enough" on the issue of data protection. She was disappointed that the EU "continues to outsource its security services to the United States without any reciprocity". She also argued that the rules on data transfer and storage provided for in the interim agreement were not proportionate. Following U.S. concerns that this vote may jeopardize joint counterterrorist efforts, ISRIA asked MEP Hennis-Plasschaert if the EP's vote inaugurates a new era in European Politics and what is the priority now in order to advance common EU-U.S security interests on this matter.

Firstly, she insisted on the centrality of Euro-American cooperation, but she indicated that it can not be achieved at the expense of either party. The "EU (must be) capable of acting shoulder to shoulder as a true counterpart to the U.S." she said. Stating that "proposed interim-agreement is a significant departure", she regretted that the Council and Commission "failed to act appropriately and effectively," adding that "it must be clear that Parliament is not out there to just passively take note of (their) actions," Most important is that the lack of reciprocity has not been addressed as well as the setting-up of an effective supervision of data exchange, she emphasized. Moreover, everyone knows the U.S. Congress would never adopt such an agreement granting the transfer of fellow citizens' data to any "foreign power" including the European Union, Hennis-Plasschaert concluded.

To stay completely objective, MEP Hennis-Plasschaert's reply to our questions is reproduced below, unmodified and in extenso. Bold, italic and underline were added by the interviewee:

Let me start by underlining that I too support a strong, outward-looking EU that is capable of acting shoulder to shoulder as a true counterpart to the US. In that framework it is of crucial importance to be open, fair and transparent if we are to address the issue of how Europe should cooperate with the US on counter-terrorism purposes, including law enforcement use of data collected for commercial ends.

Without a doubt, the targeted exchange and use of data for counter-terrorism purposes is and will remain necessary. But let me be clear: the European citizens must be able to have trust in both, security and data claims. Getting it right - the first time around, should be the objective. However, Council has been insufficiently strong to do so.

Indeed, the proposed interim-agreement is a significant departure from European law in how law enforcement agencies would obtain financial records of individuals, namely through court-approved warrants or subpoenas to examine specific transactions. But with the proposed interim-agreement we, instead, rely on broad administrative subpoenas for millions of records of European citizens. By the very nature of SWIFT it is not possible to refer to so-called limited requests. For technical and governance reasons SWIFT has to transfer bulk data, thereby violating the basic principles of EU data protection law such as necessity and proportionality. And this cannot be rectified ex post by mechanisms of oversight and control.

At all times it must be clear that Parliament is not out there to just passively take note of the actions of Council and Commission. Fact is that this house is always being promised jam tomorrow, if only we would be patient. However, we cannot keep falling for vague promises, we need clear commitments by now. The ball was in Council’s court but it failed to act appropriately and effectively. Council has known about the problems for over two years but has done nothing in time to deal with it.

In its declaration Council stated that it wants to ensure the utmost respect for privacy and data, but failed to address (in particular) the rights of access, rectification, compensation and redress outside the EU for data subjects. Council stated that it wants to ensure the TFTP to continue. However, it failed to address the fact that (in this way) the EU would continue to outsource its financial intelligence service to the US. The lack of reciprocity was not being addressed. True reciprocity would allow the EU authorities to obtain similar data stored in the US and in the long term consider the necessity of building up own capacity. Council did not show any commitment to line up with existing legislation, as the data retention directive for the telecom service providers which does deal with specific data. Council failed to clarify the precise role of the ‘public authority’. A ‘push’system does not mean anything if, in actual practice, SWIFT has to transfer bulk data. Transfer and storage are, in other words, by definition disproportionate. And Council did not address a European solution for the supervision of data exchange.

The rule of law is crucially important. Though, our laws are being broken and under this agreement they would continue to be broken. Parliament should not be complicit in this. Negotiations on the long term agreement should instead be launched immediately.

By withholding our consent on the interim agreement, the security of European citizens is not being compromised. Targeted trans-Atlantic data-exchange will remain possible.

And a last point: if the US administration would propose to US Congress something equivalent to this, to transfer in bulk bank-data of American citizens to a ‘foreign power’, we all know what US Congress would say, don’t we?!

Jeanine Hennis-Plasschaert

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