A slew of agreements requiring Europeans' personal data to be transferred to United States authorities will come under intense spotlight in 2010. One big legal change will have a major impact on the dynamics of the discussion: the European Parliament must henceforth give its consent for such transfers to take place. US and EU officials are worried that the European Parliament, generally more sensitive about data privacy matters, could be a stumbling block to passing transatlantic agreements.


The first showdown will be the nine-month interim SWIFT agreement that the EU Council of Ministers signed on 30 November 2009, which gives the US Treasury continued access to intra-European bank transaction records. Parliament must give its consent to this deal - and to a longer-term one for which the European Commission is due to propose a negotiating mandate in early 2010. The US Treasury has, since late 2001, had access to intra-European data via the Belgian-based SWIFT company's database in Virginia. However, on 31 December 2009, such data will only be stored in SWIFT's sites in the Netherlands and Switzerland.

Dutch Liberal MEP Sophie in't Veld, a long-time opponent of this arrangement, told Europolitics "if the Council and Commission are smart, they will involve us at an early stage in the negotiations". She added: "I want proof that the existing EU-US agreement has saved lives [the Treasury says it uses it to catch terrorists]. The public believes it's all or nothing with data transfers, but that is not true. The US could access the data without an agreement by producing a warrant and demonstrating due cause'". Another aspect she objected to was how "we are just outsourcing the job to the US. The Americans provide this data to EU governments which do not want to get it themselves for fear of breaching data protection laws".

Article 4 of the 2003 EU-US Mutual Legal Assistance treaty (MLA), which enters into force on 1 February 2010, provides for sharing information on bank records. But it is harder for the US to get the data using this route because each request must be linked to a specific criminal investigation. Moreover, the MLA route does not permit direct access to the SWIFT database, relying instead on an EU government to obtain the data for the US. Governments can refuse to help if the crime being investigated is not punishable by at least two years in prison in the requested state. Such restrictions explain why the Treasury...

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