US Vice President Joe Biden gave a remarkable speech today at the European Parliament, devoting substantial time to professions of personal and institutional US commitment to “privacy” while focusing his policy agenda on lobbying the EP to approve warrantless, suspicious US government access to European financial (SWIFT/TFTP) and travel (PNR) data. If you don’t have time to watch it all, the discussion of privacy and surveillance starts at around 21:15.

Swedish libertarian blogger Hendrik Alexandersson’s comments about Biden’s tightrope act are, perhaps, indicative of the lack of persuasive power of such obviously hypocritical arguments for those genuinely committed to civil liberties.

Biden’s speech was a day late, following Europarl votes yesterday not to approve proposed SWIFT and PNR agreements with the DHS, but instead to set strict new condiitions any such agreements will have to meet.

Biden’s focus on “privacy” also indicates a lack of appreciation for what the EP resolution on PNR data actually says.  It’s not limited to privacy or data protection, but makes explicit that the fundamental rights at stake include the right to travel, as guaranteed by Article 12 of the International Covenant on Civil and Political Rights. The new terms of reference for any PNR agreement that will be acceptable to the EP are the criteria established by the U.N. Human Rights Committee for evaluating whether measures that implicate freedom of movement are consistent with that treaty.  That right to freedom of movement, and those standards for it — entirely ignored by V.P. Biden and, to date, by the DHS, which has entirely ignored our formal complaint that their use of PNR data violates the ICCPR as well as the Privacy Act  — are what both US and EU negotiators should be studying closely as the starting point for new negotiations on PNR data.

Today the Department of Homeland Security received its most significant rebuff from any democratically elected body since the DHS was created after September 11, 2001.

In response to a recommendation from the Council of the European Union (the EU member national governments) for approval of the “interim” agreement under which the DHS obtains all airline reservations (PNRs) for flights between the USA and the EU, the European Parliament instead voted to send the European Commission back to the negotiating table, and set strict conditions (which the DHS will likely be in part unable and in part unwilling to meet) that must be satisfied before Parliament will approve any such agreement in the future.

The motion for a resolution was jointly sponsored by representatives of all seven political groups in the Parliament. The votes by show of hands — including votes in favor of several amendment to strengthen the resolution — were overwhelming, with insufficient opposition to necessitate recorded votes.  And that was in spite of what our sources in the Parliament tell us was an unprecedented and heavy-handed US government lobbying campaign.

The vote today in Brussels follows a Parliamentary hearing (at which we testified) and a debate last month in Strasbourg on travel surveillance and control, the likes of either of which the US Congress has yet to hold — despite the leading role of the US since September 11, 2001 (and even before then) in implementing a system of mandatory retention of travel data, using it as the basis for a permission-based travel control regime, and attempting to get these schemes adopted as global norms.

The ability of the Parliament to dictate conditions for negotiations to be conducted by the European Commission, with the implicit threat to veto any agreement that fails to meet those conditions, is one of the first expressions (the first was Europarl rejection of DHS access to European inter-bank wire transfer data) of the new veto power that the Parliament acquired in December 2009 when the Lisbon Treaty came into effect.

What has the European Parliament done? What happens next? And what else remains to be done, outside the negotiating room? Read More →