Mar 07 2012

All US police to get access to international travel records?

This just in from the “All international travelers are suspected terrorists” department:

In response to questions (see the video at approx. 37:00-38:30) from members of a House Homeland Security subcommittee during a hearing yesterday, DHS Deputy Counter-Terrorism Coordinator John Cohen said that, as part of the Orwellianly-named “Secure Communities” program, local police will soon be receiving the result of a check of DHS international travel logs, automatically, for every person arrested anywhere in the US for even a minor offense. Local police will be able to run checks of travel records for “nonoffenders” — innocent people — as well.

According to one report:

Under the forthcoming plan, authorities will be able to instantly pull up an offender’s or nonoffender’s immigration records and biometric markers, he said. The government already is able to vet visitor records from multiple databases for national security and public safety threats, Cohen added.

“So, today, if someone is arrested for any type of offense, part of the query that will take place will be an automatic check of immigrations systems — it will be a check of TECS as well,” he said. “The chances are greatly enhanced that today if somebody were to be booked on a minor drug offense or a serious traffic violation even, the person’s immigration status would come to our attention.”

Here’s what the result of a TECS check might look like: logs of (legal) international travel, and notes from customs inspectors about whatever events they considered noteworthy (again, including events that were entirely legal).  We got these linked examples before DHS exempted TECS from most of the access requirements of the Privacy Act. You no longer have any legal right in the US to find out what’s in the TECS records about yourself. And while TECS was being described to Congress as an immigration enforcement system, these examples are from TECS records about a US citizen. Logs are kept in TECS of everyone who travels to, from, or via the US — even US citizens.

TECS used to include complete airline reservations (Passenger Name Records). PNR data has been re-categorized as a separate DHS system of records, the “Automated Targeting System”. But TECS records include the traveler’s name and the airline code, flight number, and date of each flight, which is sufficient information to retrieve the complete PNR from the airline or the computerized reservation system (CRS) that hosts it. This airline data is obtained from APIS transmissions, which the US has claimed to the European Union are used only for a narrow range of purposes.

Soon, it will be as easy for any local law enforcement officer anywhere in the US to run a “TECS check” of these records about you as it is today for them to run a check of your criminal record from NCIC. Except that the records in TECS are records of your exercise of First Amendment rights of freedom of assembly, not records of criminal convictions.

Or should we be asking if the DHS now thinks that foreign travel has become tantamount to a crime?

Mar 05 2012

New questions from European Parliament about “bypass” of EU-US agreement on PNR

Important new questions about how the US government can bypass the proposed EU-US agreement on access to PNR data have been asked by a key Member of the European Parliament.

These new questions by MEP Sophie in ‘t Veld (the Europarl “rapporteur” or floor leader on the proposed PNR agreement) follow up on evasive, misleading, and incomplete responses by European Commissioner Cecilia Malmström’s to previous questions from MEPs about PNR data.

The proposed EU-US agreement would pertain only to DHS copies of PNR data obtained directly from airlines, but would not regulate the master copies of PNRs held by Computerized Reservation Systems (CRSs) such as Sabre, Galileo/Apollo by Travelport, Worldspan by Travelport, and Google in the US or Amadeus in Europe (each of which is used by travel companies in the US, EU, and other countries).

Two sets of questions (here and here) about US government access to CRS databases of PNRs were tabled today by MEP in t’ Veld, with a request that the European Commission respond before the LIBE Committtee of the EP vote on the proposed EU-US agreement, currently scheduled for March 27th.

The first set of these questions focuses on US government access to PNR data held on servers in the US (such as whenever a European travel agency or tour operator uses one of the US-based CRSs).

The second set of questions concerns the ways that US law allows the US government to bypass the proposed agreement and obtain PNR data through CRS offices in the US — even when the data is stored on servers in the EU:

US access to PNR data in Computer Reservation System Amadeus II

Computer Reservation System Amadeus has its headquarters in Madrid (Spain) and its central database in Erding (Germany). Additionally, it has several offices outside the EU, including an office in Miami, in US jurisdiction. All Amadeus offices around the world have access to the PNR data base in Erding.

  1. Is the Commission aware that the US authorities may retrieve PNR data stored in Europe (Erding) through the Amadeus office in the US, for example by using National Security Letters? Is the Commission aware that such retrievals are not being logged, and that Amadeus may be sworn to secrecy by the US authorities?
  2. Does the Commission consider this would allow the US authorities to get access to PNR data, at least on an ad hoc basis, at any given moment? Does the Commission agree that this is not only equivalent to the PULL method, but that it even exceeds PULL, as it allows for the retrieval of all PNR data, not just the fields specified in the EU-US Agreement, without the obligation to log the retrievals? Does the Commission agree that this leaves the clauses on PUSH and PULL and logging, in the EU-US agreement completely meaningless in practice?
  3. Does the Commission agree that data retrieved by the authorities of a third country from an EU located data base would constitute a transfer of data to a third country? Is the Commission aware if Amadeus or similar CRS are keeping logs of such retrievals? If not, does the Commission consider that such retrievals are a violation of EU data protection rules?
  4. If no logs are being kept of the retrievals described above, would the Commission agree that citizens would have no means to exercise their rights to verify and correct their data?
  5. Can the Commission provide an overview of other Computer Reservation Systems with a presence in the US, that would be in the same position as Amadeus? Can the Commission provide an overview of PNR data stored in Europe by CRS, that are thus available to third countries other than the US?

We’ve been asking exactly these questions for years, and we’re pleased to see that MEPs are demanding answers from the European Commission before they vote on an agreement that, in fact, would do little to reign in the US government’s demands to PNR data because it could so easily be bypassed.

Some of these questions are easily answered, although the EC may not want to admit the answers.

EU-based airlines including KLM, Air France, and Lufthansa have each told us, in response to our requests for access to our PNR data, that Amadeus has no logs of who has accessed our PNRs. And in response to our lawsuit seeking access to PNR data held by DHS, the US government has claimed that it has no logs of who has accessed the DHS copies of PNRs with information about us.

We presented diagrams of the information architecture of the PNR data ecosystem, and the pathways for PNR data flows which bypass the EU-US agreement, in our testimony to MEPs in Brussels in 2010. A representative of the EC attended and spoke on the same panel with us at that hearing, so the Commission can’t claim that they were unaware of these issues. We also explained this bypass pathway in our FAQ on Transfers of PNR Data from the EU to the USA, which was first distributed to MEPs in 2010 and which we’ve just updated and re-posted.

The possibility for the US government to bypass the EU-US agreement and obtain PNR data directly from CRS servers or offices in the US was also explicitly raised by the US government in its negotiations with European governbments.  European authorities, including the German data protection commissioner and chair of the Article 29 working party, have been fully aware of the US ability to bypass the agreement in this way since at least 2006, when the US pointed this bypass channel out to European authorities.

Many of the US diplomatic cables made public by Wikileaks relate to US access to PNR data. Perhaps the most interesting of these PNR-related Wikileaks cables was sent to Washington from the US Embassy in Berlin on  October 31, 2006. This cable reports on two days of meetings between Assistant Secretary (“A/S”) of Homeland Security Stewart Baker  — the chief drafter and negotiator for the US of the original PNR agreements — and various German government officials. (Baker’s own self-serving account of these meetings is included in his memoir, Skating on Stilts, which he has kindly made available for free download.

But Baker’s account omits some of what he reported to his bosses in Washington:

A/S Baker warned that in many cases the actual airline databases reside in the United States, and the airlines of many EU countries do not have flights to the United States, and so in this light, from the U.S. perspective, it was difficult to see why an EU government and parliament should have any influence on the access of U.S. agencies to data in the United States.

This is why the DHS recently testified to Congress that the reason for the proposed agreement was to “To protect U.S. industry partners from unreasonable lawsuits.” The US government doesn’t need any “agreement” with the EU to obtain PNR data collected in the EU, as long as EU travel companies continue to outsource the storage of PNR data to CRSs based in, or with offices in, the US.

It’s also important to note that the DHS referred to the need to “protect U.S. industry partners”, not European companies. The US govenrment doesn’t care whether European companies comply with European law, or are disadvantaged by US law. the US government wants to protect US companies that are at risk of liability for violating EU law.

Who are those companies? Clearly, the principal violators of EU law in this case are the US-based CRSs, which shouldn’t be allowed to operate or serve travel agencies, tour operators, or airlines in the EU unless they comply with EU law — which they don’t.

It’s not illegal to transfer PNR data from a travel agency in the EU to a CRS in the US. but it is illegal to do so without being able to ensure that the data transferred will be protected, and without the knowledge or consent of the data subject.

No travel agency or tour operator in the EU ever says to a customer, “Is it OK if I store your PNR for this flight from Berlin to Brussels on a server in Denver (or Dallas)?” But that’s what happens whenever a Sabre or Travelport subscriber in the EU makes a reservation, regardless of whether the itinerary involves any destination in the US. And that’s the question any such travel agency is required to ask, under current EU data protection laws, before they can outsource their customers’ data to the US.

The fact that this practice is flagrantly illegal, but so widespread, is one of the clearest examples of the failure of EU authorities and the so-called “Safe Harbor” scheme to protect the personal information of either European or US travelers.

We hope to see these issues addressed not just by the EC and the European Parliament, in response to MEP in ‘t Veld’s questions, but also by EU policy-makers reviewing “Safe Harbor” and the protection of personal data stored by “cloud services” (of which CRSs are one of the first examples).

We’ve been invited to attend the EC’s trans-Atlantic conference on Privacy and Protection of Personal Data later this month, and hope to raise these issues there and see them made part of the ongoing review of “Safe Harbor”, the EU Data Protection Directive, and privacy policy for cloud services.

Mar 01 2012

Google is now in the PNR hosting business

Today Google and Cape Air announced that Cape Air has migrated its reservations and Passenger Name Records (PNRs) to a new computerized reservation system (CRS) provided by Google’s ITA Software division.

ITA Software was working on a CRS even before it was acquired by Google last year, but had appeared to lack a launch customer to fund the project after its original partner, Air Canada, backed out. In his first public statement last November after the Google acquisition was completed, Google Vice President and former ITA Software CEO Jeremy Wertheimer anticipated today’s announcement and said that with Google’s new backing, his division was “burning the midnight oil” to complete the project.

Cape Air, Google’s CRS launch customer, is a very small US airline that mainly flies 9-seat piston-engined propeller planes to small resort islands. Most of what might look like “international” destinations on their route map are actually US colonies. But Cape Air does serve some British colonies in the Caribbean, including Anguilla and Tortola. All reservations for those flights, as well as any reservations for Cape Air’s domestic US and other flights made through travel agencies, tour operators, or “interline” airline partners in the European Union, are subject to EU data protection laws.

So as of today Google should have in place an airline reservation system, including PNR hosting functionality, which fully complies with EU laws including in particular UK data protection law and the EU Code of Conduct for Computerized Reservation Systems.

We’re doubtful that Google (or Cape Air) have complied with these requirements of EU law. Cape Air’s privacy policy says, “CapeAir does not fly routes within Europe, so this Privacy Policy is not adapted to European laws.” It appears to be true that Cape Air doesn’t fly within Europe, but it does operate flights to and from UK territories that are legally part of the EU. Cape Air also says, “By agreeing to Cape Air’s Privacy Policy, you consent to Cape Air applying its Privacy Policy in place of data protections under your country’s law.” It’s not clear whether such a waiver of rights is valid. The “Privacy Policy” link  on goes directly to Google’s new global privacy policy, which appears to say that Google may merge information from all Google services, presumably including Google’s new PNR-hosting service.

At the same time, in accordance with the Advance Passenger Information System (APIS) and PNR regulations of US Customs and Border Protection (CBP, a division of the DHS), that also means that Google has connected its system to CBP’s Automated Targeting System (ATS).  Whether Google has given CBP logins to “pull” data whenever CBP likes (as the other CRSs have done), or whether Google “pushes” PNR data to CBP, remains unknown until some Cape Air passenger requests their PNR data under EU law.

In accordance with the US Secure Flight rules, the Google CRS for Cape Air must also have a bi-directional connection to the US Transportation Security Administration to send passenger data to the TSA and receive permission-to-board (“cleared”) fly/no-fly messages in response.

This is, so far as we can tell, an unprecedented level of direct connection between Google’s databases and any government agency.  Has Google complied with EU law? Probably not, but we can’t tell. We invite Google to allow independent verification of how it handles PNR data, and whether its CRS system and its connections to the US government comply with EU rules.

[It’s also important to note that the privacy and data protection practices of CRSs, including Google’s “ITA Software” division, are outside the jurisdiction of the Federal Trade Commission and subject to policing only by the do-nothing Department of Transportation.]

There are also interesting questions about what profiling and data mining capabilities are built into Google’s CRS system. “Legacy” CRSs store PNRs in flat files in which PNRs for different trips by the same traveler can be difficult to link. But a report on the new Google CRS in the online trade journal Tnooz says it “enables … call center agents ‘to see customers’ history,’ including past trips and upcoming flights, ‘right in front of them’.” Greater designed-in profiling and data mining capabilities are selling points of Google’s CRS compared to its “legacy” competitors.

EU oversight and enforcement bodies should have demanded answers as well. Last May the European Parliament approved a resolution calling on the European Commission to carry out, “an analysis of … PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU.” In November, shortly after Google’s announcment that they were moving forward with their CRS project, a Member of the European Parliament submitted written follow-up questions to the Commission as to whether the EC has conducted such an analysis, as well as whether the EC has “considered the technical or policy implications of potential new CRS providers such as Google, which may use different technology platforms from those of legacy CRS vendors?”

As we’ve noted, the “response” to these questions by Commission Cecilia Malmström said nothing about Google or other new CRS providers, contradicted the statements that have been made by European airlines, and largely ignored the issues raised by the European Parliament.

Cape Air is a small first step into the CRS industry by Google, but it won’t be the last.  Everyone concerned with how PNR data is stored and processed, including data protection authorities in countries that (unlike the US) have such entities, should carefully scrutinize and demand satisfactory, verifiable answers as to what this means about Google’s relationship to US government agencies and the need for oversight and enforcement of privacy data protection rules applicable to all CRS companies.