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Deutsch: Neues SWIFT-Abkommen so schlecht wie das alte

The EU Commission adopted on 15 June 2010 the new agreement with the US Department of Treasury (DoT) on the transfer of data to the DoT's Terrorist Finance Tracking Programme (TFTP), informally called "SWIFT agreement" because it relies on data from the Society for Worldwide Interbank Financial Telecommunication. It had been negotiated since 11 May, after the Council of Ministers adopted a new mandate. The text of the agreement was made public by Statewatch and several MEPs. It is significantly longer than the previous one which had been rejected in February by a large majority of the European Parliament because of privacy concerns. A lot of the new text contains non-binding wording on data protection principles and legal safeguards, obviously written to persuade the reader to think there are real improvements.

On substance though, there are not many changes. The agreement is still based on the transfer of "bulk data", i.e. millions of data-sets of all transactions of banks of specific countries for a given time period. These are received by the DoT and stored for five years, just as before. The data can later be searched for specific individuals, account numbers or related information. The transfers now have to be authorized by EU police authority Europol which, according to the text, has to check if the requests are to "be tailored as narrowly as possible". Article 10 of the agreement, on the other hand, gives Europol the right to request data searches in the transferred data from DoT, which will in practice seriously conflict with any incentive the police agency might have in the first place to limit data transfers. While the agreement speaks of legal safeguards and redress options for EU citizens when their data is transferred and processed in the U.S., there are no binding obligations for the U.S. side to introduce the needed changes in their laws, such as in the Privacy Act. The agreement does not contain a sunset clause.

The Commission will now send the Agreement to the Council of Home Affairs Ministers, who, after adopting it, will ask the European Parliament for consent. In the Council, there are rumours that some member states are questioning the extension of the mandate of Europol. UK, Denmark and Ireland have opt-out clauses here, so the agreement may actually not apply to them. Many Parliament Members have already voiced criticism, especially over the bulk transfers, the retention periods and the function of Europol, as the EP had asked for a judicial authority to authorize data transfers, not a police agency. A majority for a rejection is not at all clear yet, though. Commissioner Malmström is currently doing heavy lobbying in the Parliament and is talking to individual political groups and members.

There also seem to be some legal issues around the Europol function, because a consent of the Council and Parliament would imply that Europol then operates under the provisions of the Lisbon Treaty. This is normally done under co-decision procedures, where both institutions have options to change the legislative proposal. In an international agreement such as this, they can only say "yes" or "no". The bulk data transfers and retention periods may also be in conflict with the March ruling of the German Constitutional Court on data retention.

TFTP / SWIFT Agreement (14.06.2010)
http://www.statewatch.org/news/2010/jun/eu-usa-draft-swift-agreement-c...

Statewatch: Comparative Chart of the draft agreement (6 June) and the text agreed by the European Commission - with Commentary (15.06.2010)
http://www.statewatch.org/news/2010/jun/eu-usa-comparative-table-swift...

EU Commission: MEMO/10/258. Terrorist Finance Tracking Programme - Comparison of Council Mandate with draft EU-US Agreement (15.06.2010)
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/258&am...

European Parliament: Resolution on SWIFT/TFTP Negotiations (5.06.2010)
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&...

EDRi-Gram: European Parliament needs to reject the SWIFT deal (10.02.2010)
http://www.edri.org/edrigram/number8.3/european-parliament-to-discuss-...

(Contribution from Ralf Bendrath, EDRi-member NNM- Germany)