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Armed with new treaty, Europe amplifies objections to U.S. data-sharing demands

By Edward Cody
Washington Post Foreign Service
Tuesday, October 26, 2010; 6:46 PM

BRUSSELS - The Obama administration has encountered mounting resistance in Europe to its demands for broad sharing of airline passenger data and other personal information designed to spot would-be terrorists before they strike.

Europe's objections, based on privacy considerations, worry U.S. counterterrorism officials because computer scrutiny of passenger lists has become an increasingly important tool in the struggle to prevent terrorists from entering the United States or traveling to and from their havens. The would-be Times Square bomber was hauled off a Dubai-bound airliner in May, a senior U.S. counterterrorism official said, after his name on the manifest produced a ding in Department of Homeland Security computers.

European privacy advocates have long criticized the U.S. effort to scoop up as much information as possible on U.S.-bound travelers, saying it violates Europe's traditionally stringent data privacy laws. But their power to criticize was boosted recently to the power to block. Since Dec. 1, the Lisbon Treaty has given authority over such accords to the European Parliament, where privacy concerns are embraced.

"The administration can't just stiff-arm them anymore," said Marc Rotenberg, who heads the Washington-based Electronic Privacy Information Center and testified at a European Parliament hearing in Brussels on Monday.

As a result of lawmakers' concerns, the European Union executive has demanded a renegotiation of the four-year-old agreement laying out the conditions under which European airlines can supply passenger data. The move amounts to a recognition that the current accord, renegotiated after the European Court of Human Rights struck down the first version, could never be approved in the European Parliament as it stands.

The negotiations for a new deal, due to get underway in coming weeks, will be conducted by the European Union's executive commission, which in the past has been more amenable than the parliament to U.S. concerns. The 27 E.U. heads of state are scheduled to approve the commission's negotiating mandate at a summit conference in December. But privacy advocates have said that regardless of what the heads of state decide, there is a majority in parliament that will reject any accord that does not meet their concerns.

"Now we have the power, and they have to deal with us," said Sophie in 't Veld, a Dutch privacy advocate and European Parliament member who is vice chairman of the Committee on Civil Liberties, Justice and Home Affairs.

Recognizing the new reality, the U.S. mission to the European Union has strengthened its team focused on the parliament. Ambassador William E. Kennard, a recent Obama appointee, was among those testifying at Monday's hearing, emphasizing the history of U.S.-European cooperation and shared values.

Nevertheless, he said, "while we share the same values, we implement them in different ways."

Kennard said that the United States would oppose any attempt to make the new agreement invalidate the dozens of agreements, most of them secret, that the United States has concluded with individual European governments. But several European Parliament members said that leaving those accords intact would make no sense if they violate the pan-European agreement, insisting they would have to be updated.

"We will not be easy to deal with," one of them told Kennard.

"I would like to say this is just a bump in the road," the counterterrorism official in Washington said, speaking on the condition of anonymity because of the sensitivity of the subject. "But if the negotiating mandate contains some constraints on the commission that would eviscerate the agreement, then we're obviously concerned."

European privacy advocates have also raised objections to U.S. "data fishing," or combing through data to shake out suspects without a cause for suspicion; U.S. attempts to use passenger data to create profiles of likely terrorists; and data sharing among U.S. agencies, some of which might have nothing to do with counterterrorism.

"The whole collection of data, it's getting to a point where it's almost hysterical," in 't Veld said.

Parliament members expressed concern Monday about the lack of a reliable legal channel for Europeans to challenge what U.S. government agencies do with, and conclude from, data collected on them. U.S. citizens have such a right under the 1974 Privacy Act, but it excludes non-Americans.

Along with the specific objections, however, ran a current of irritation that Europeans are being asked to cooperate in a U.S. anti-terrorism campaign that many of them say has more than once veered off course - leading to torture, black prisons, extraordinary rendition and Guantanamo.

"Rather than the Americans dragging the European standards down, we should insist that the Americans live up to their own decent standards," said Douwe Korff of London Metropolitan University, one of a dozen expert witnesses.

The undercurrent of irritation swelled in January when the United States began requiring U.S.-bound travelers from countries covered by a visa waiver program to register first with the Department of Homeland Security. Failure to register on a U.S. Web site at least two days before a planned flight can result in an airline refusing to allow a passenger to board, a prospect that limits last-minute travel.

The irritation was compounded by a recent announcement that as of last month, European travelers would be charged $14 to register. Some European officials have described the registration and fee system as a visa by another name and threatened to impose a visa requirement on U.S. travelers to Europe in retaliation.

"We're getting fed up with the U.S. imposing its legislation on us," in 't Veld said.

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