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Balancing the Fight Against Terrorism Against the Right to Privacy

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Catching terrorists is not always about James Bond-style spying with white-knuckle chases and high-tech gadgets. These days results are often achieved in the office by analysing dry sets of data. Although effective, there are concerns that using data in this way could be abused for other ends.

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This explains why the agreement on the use and transfer of Passenger Name Record (PNR) data to the US Department of Homeland Security has proved to be so controversial. This data covers a wealth of information on anyone who is flying, including not only name, nationality and passport number, but possibly also medical data, religion or sexual orientation. The European Parliament will vote on the EU-US agreement on Thursday.

PNR data can be a valuable tool to gather evidence and uncover serious crimes and acts of terrorism. It was used in the investigation of the London bombings on 7 July 2005 as well as the terrorist attacks in Mumbai in November 2008. It has also helped to capture criminals such as murderers and drug traffickers.

However, there are concerns that the data could be used for other means such as profiling or immigration and border controls. There is also the question about how long the data should be kept, who has access to them, and what legal redress is available should something go wrong.

The European Parliament withheld its approval of an earlier version of the agreement in 2010, when it called on the Commission and the US to negotiate a better agreement. A resolution from the same year specified what conditions it should meet. This included assurances that the data would only be used for terrorism or serious international crimes, the requirement that everything would be in line with European data protection standards, and a ban on the use of PNR data for data mining or profiling. The resolution also stated that the data should be sent by airlines and that US authorities should not be able to pull the data themselves.

The new agreement incorporates a number of improvements compared to the previous version. Under the agreement US authorities can only retain the PNR data in an active database for up to five years. After six months information identifying the passenger would be hidden. After five years the data would be moved to a dormant database for up to 10 years, with stricter access conditions. Sensitive information such as ethnic origin, religion or political opinions could only be used in exceptional circumstances when someone's life is at risk. Normally the data should be sent by airlines, but in certain cases US authorities would be allowed to get the information themselves.

The question is now: does this new draft go far enough to address the Parliament's concerns? MEPs seem divided on it. The Parliament's civil liberties committee voted with 31 MEPs in favour and 23 against to recommend approval. However, Sophie in 't Veld, who is responsible for steering the agreement through Parliament, calls on her fellow MEPs to reject the deal.

If the Parliament green-lights the agreement on Thursday, then the Council will adopt a decision concluding the agreement, which would then be in force for seven years.

Things get more complicated if MEPs decide to reject it. Parliament could then be asked to vote again on the first draft of the agreement and if this is also thrown out then there would be no common EU legal basis for transferring the data to the US, which could create problems for air carriers that continue to do so. It could also lead the US to suspend EU citizens' visa-free travel to the country.

It will be a difficult vote: MEPs will have to carefully weigh the pros and cons of the agreement to decide what is in the best interest of Europeans. Unfortunately, in life things are never as clear cut as in a James Bond film.

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