Brussels, 13/10/2008 (Agence Europe) - The United States has reminded the EU that it wants to strike an agreement with the EU without delay on the protection of data in order to allow greater exchange of information in order to combat terrorism and crime. High-ranking US representatives led by US Homeland Security Secretary Stewart Baker and high-ranking EU representatives like the Director of DG Justice, Freedom and Security at the European Commission, Jonathan Faull, met in Washington last week to discuss thorny transatlantic problems with data protection and visa policy. A ministerial meeting in Washington on 10 December 2008 will provide an opportunity to get the ball rolling.
Refusal to agree for the sake of it. At a summit between the EU and the US in June 2008, both sides agreed to agree on a binding international agreement on the transfer of information, along with data storage, access and protection (see EUROPE 9679). In early October of this year, a US representative regretted that the talks at the high level EU-US data protection group had been on 'hold' for several weeks (see EUROPE 9754). The US does not want any further delays. After the meeting in Washington, a diplomat told this newsletter that the Americans were applying a lot of pressure for agreement to be reached on data protection. There is a large-scale technical issue blocking agreement because the right to appeal to court on data protection disputes differs on either side of the Pond. Moreover, the United States will only sign a simple political statement which would have a political impact rather than a legally binding agreement. The diplomat said there were things that could not be done and data protection had to be respected, pointing out that the EU will soon have data protection rules in the field of police and juridical cooperation. There are additional problems with reaching agreement in this domain, which is a legal minefield, because of its impact on another thorny issue, that of the United States' introduction of an Electronic System for Travel Authorisation (an online visa system) for travellers from the EU wishing to go to the United States (see EUROPE 9754 and 9677).
US reassurance over ESTA. From 12 January 2009, people from countries to which the US visa waiver programme applies will have to request an ESTA online before travelling if they wish to go to the United States, but does the ESTA respect EU data protection legislation? Stewart Baker assured his EU counterparts that the only difference from the I-94W form that travellers to the US usually have to fill out at customs on arrival in the United States is the fact that the form has to be filled in online and an email address and mobile telephone number have to be given. The length of time the information on the database will be kept for, 75 years, has not changed. Moreover, passengers will have the right tot access and rectify the information held on them. Baker said that the procedure for issuing visas for passengers with HIV or AIDS has now been facilitated but they still cannot make use of the Visa Waiver Program (VWP). Is the ESTA the same as a visa? The European Commission is awaiting publication of the official legislation in the federal register before deciding (it should be published at the end of October or beginning of November 2008). The consequences could be very unfortunate because if the ESTA proves not to have the same characteristics as a visa (if one has to pay for it, for example), then the EU may decide to reintroduce the obligation for US citizens to have a visa to travel to the EU. For the moment, the United States is not planning to charge for ESTA but is leaving this option open for the future, which is of great concern to several Member States, particularly the United States. The European Commission's current estimates suggest that between USD10 and USD20 might be charged but amid the current electoral campaigning, various US senators are already upping the stakes.
EU visa talks get bogged down. The European Commission asked the United States if it was prepared to sign an extended agreement to facilitate the inclusion of all EU Member States in the VWP (see EUROPE 9709). The US prefers to negotiate separately with each Member State on the VWP particularly because the EU has not made enough concessions on the exchange of information as far as the US is concerned. The US has repeatedly requested the right for their law enforcement agencies to access EU databases to compare the fingerprints of asylum seekers and illegal immigrants (Eurodac) but the EU has categorically refused this. Washington has indicated, however, that it is prepared to continue talks, but does not want to enter official negotiations. The bilateral route is paying off and from 17 November 2008 onwards (date chosen because of start of the Velvet Revolution in Czechoslovakia on 17 November 1989), seven Member States (Estonia, Latvia, Lithuania, the Czech Republic, Slovakia, Hungary and Malta) will not need a visa to travel to the United States. (B.C. trans fl)