The depoliticisation of air travel surveillance : the changing debate on the European passenger name record initiative

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MASTER THESIS POLITICAL SCIENCE

The depoliticisation of

air travel surveillance

The changing debate on the European

Passenger Name Record initiative

Alexander von Wedel June 2015

First reader: Dr Stephanie Simon Second reader: Mr Gavin Sullivan

European Union in a Global Order Master Research Project

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I. The Passenger Name records initiative: from heavily

disputed to uncontroversial

On January 7th several armed individuals forced their way into the Paris offices of the French satirical magazine ‘Charlie Hebdo’. After locating the employees, these gunmen opened fire, killing twelve and wounding several others. In the aftermath of the shooting, it became clear that the culprits were acting out of a radical Islamist background, taking revenge for caricatures of the prophet Muhammad in said magazine. After this incident, European and international headlines were filled with expressions of solidarity and shared grief. Governments and officials around the world also expressed their commiseration. The European Council issued a statement on February 12th stating their grief. In the same document, a call is made for novel tools and the strengthening of existing measures concerning the security of European Union (EU) citizens. The very first measure in this statement demands that “EU legislators adopt urgently the proposal on European Passenger Name Record” (European Council 2015, p. 2).

Although two earlier proposal of such a measure have been rendered obsolete or had come to a stalemate, the debate about Passenger Name Records (PNR) is being renewed and on the way of being ratified in the near future. In this thesis, the history of the debate from 2007 to 2011 will be traced and analysed to understand how exactly the European PNR initiative has been framed and justified in official debates. This thesis will thus ask, how the debate has changed and how a reframing of the topic took place. How did precautionary security logics open up or foreclose political debates over EU PNR? Subsequent questions will involve the underlying security rationale of precaution and whether this reasoning played a role in the dynamic of the debate. In the conclusion of this thesis, we will evaluate how contesting ideas of proportionality and necessity have been reframed into questions of harmonisation, technicalities and statistics. We will discover how this dynamic increasingly closed the debate for fundamental criticism, rendering the PNR measure less controversial.

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Passenger Name Records (PNR) consist of several types of information that include “travel dates, travel itinerary, ticket information, contact details, travel agent through which the flight was booked, means of payment used, seat number and baggage information” (DG Migration and Home Affairs) among others. While the EU is already sharing such data with third countries like Canada, Australia and the United States of America, an intra-European PNR agreement has not yet surfaced.

In 2007, the European Commission handed in a proposal for such a document but since this agreement had not been ratified as the Treaty of Lisbon came into force, the draft became legally obsolete. A second proposal was released in 2011 and has since been discussed in various EU institutions and organisations. It is this proposal that the above-mentioned statement is referring to. The last 4 years since the 2011 proposal was brought into the political fore are marked by multiple disagreements and controversies regarding the document.

By analysing the discourse concerning the two proposals, we will witness how the debate is shaped from the initial discussion of substantial concerns and criticism towards a securitised and thus depoliticised understanding of the topic, increasingly void of fundamental objections. The field of the discussion is gradually undergoing a transformation in which actors initially were fundamentally at odds. Although they possibly still have different understandings of what is appropriate and important, they increasingly converge on a comprehension of the topic in technical practices and legal terms.

This thesis is structured as follows. The PNR initiative is to be seen as a measure that mainly justifies its existence as being a valuable tool in anti-terrorist endeavours as its prime goal is to predict and prevent the movement of suspected terrorists. To understand the connection of this rationale to the concept of depoliticisation, we will then encounter the Paris School’s understanding of how a discursive move of securitisation translates into practices and how novel practices are increasingly normalised. This will lead us to the understanding of securitisation as a strong form of depoliticisation that is evident in the recent phenomenon of the so-called ‘War on Terror’ that is being fought by the European Union and the United States of America

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with the rationales of preemption. The methodical chapter will then elaborate, how the tracking the frames of the debate, helps in understanding the depoliticisation as a transgression of a political topic to the realm of politics. To trace the precautionary rationale, we will analyse the PNR proposals of 2007 and 2011 as well as prominent reactions to them. The analysis will focus on the proposals themselves as on the reactions by prominent EU actors such as the European Data Protections Supervisor (EDPS), The European Union Agency for Fundamental Rights (FRA) and the Article 29 Working Party. The conclusion will evaluate the importance of the frames and justifications that were employed in the debate and will discuss their importance for the depoliticisation of the debate.

II. Changing the debate: How a discourse is depoliticised

1. The precautionary principle: Pre-empting the unknown

The European PNR proposals prominently speak of terrorism and organised crime, underlining the threat it represents to the European society. In the 2007 PNR proposal said provisions “currently constitutes one of the greatest threats to security, peace, stability, democracy and fundamental rights, values on which the European Union is founded” (Commission 2007, p. 2). The same prominence is given to these provisions in the 2011 proposal, as the very title of the document calls for PNR as a measure “for the prevention, detection, investigation and prosecution of terrorist offences and serious crime” (Commission 2011, p. 1). Alongside terrorism and organised/serious crime, the term ‘prevention’ is equally prominent. Consequently, this thesis will take a special focus on security rationales that include predictions on the future in the context of the fight against terrorism and crime.

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The question remains, how a governing actor actually takes on the idea of precaution and preemption. Foucault emphasizes in his concept of modern security society the uncertain nature of the mobile elements and that

“the management of these series that, because they are open series can only be controlled by an estimate of probabilities, is pretty much the essential characteristic of the mechanism of security.” (Foucault et al. 2009, p. 20).

As the possible outcomes of terrorist attacks become potentially catastrophic, the willingness of governing actors to take the risk of disaster decreases. A worst-case scenario requires political and security actors to act according to a rationale that endeavours to pre-empt such events. Claudia Aradau and Rens Van Munster define this reasoning as the precautionary rationale. This rationale is distinct, insofar as

“the precautionary principle does not target all risk situations but only those marked by two principal features: a context of scientific uncertainty on the one hand and the possibility of serious and irreversible damage on the other” (Aradau & Van Munster 2007, p. 103).

As these logics are proliferated in the discourse, the debate itself changes. Topics that were formerly discussed in a political environment are reframed in security terms, narrowing down the debate and its outcomes. The discipline of security studies refers to this kind of sequence as a process of securitisation. In the following we will look at this particular concept and explore how it resonates with our idea of the debate.

2. Securitizing the debate, facilitating novel practices

The Paris School’s concept of securitization is of high importance for the analysis that this thesis is based upon. When talking about the concept of securitisation it is nevertheless important to at least mention another school of thought concerned with security studies, the so-called Copenhagen School (CS). In their line of thought - prominently represented by scholars like Ole Wæver and Barry Buzan - securitisation is mainly a speech act, a discursive “move that takes politics beyond the established rules

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of the game and frames the issue either as a special kind of politics or as above politics.” (Buzan et al., 1998, p. 23).

Although acknowledging this analysis, scholars of the Paris School place different value and weight on the singular aspect of the speech act and add the observation of security practices. Connecting these practices to the discourse is of special interests for Julien Jeandesboz and Polly Pallister-Wilkins, who argue that a discursive securitisation move, for example the labelling of a certain topic or event as a crisis, “enables new patterns of action or justifies the continuation of established ones.” (Jeandesboz & Pallister-Wilkins, 2014, p. 115) Based on their observation of this technique of ‘crisis-labelling’ they trace the facilitation of security practices that would not have been possible without the notion of exceptionality and urgency that such an attribution renders possible. A reframed discourse in terms of security enables novel and exceptional practices. It is also the understanding of Jeandesboz and Pallister-Wilkins, that these practices are subsequently translated into the existing, normal and rather mundane practices of bureaucratic agencies and institutions. In their example, an implementation of measures that were argued for through crisis-labelling in discourse, were translated into every-day border and immigration management by the agency FRONTEX. The implementation of measures and policies that were originally justified with the temporal crisis,

“reflects an attempt by bureaucratic actors within the European arenas to normalise the emergency, and to use the sense of urgency built up by the professionals of politics to make a concrete case for the normalisation of EU migration policy.” (Jeandesboz & Pallister-Wilkins, 2014, p. 124)

Controversial measures that were formerly deemed justifiable in a clearly cut temporal and topical frame, are increasingly implemented in every-day security routines. As these provisions are normalised they become less controversial. The measure traverses from a politically contested issue to a mundane practice and technical issue that becomes part of everyday politics.

It is exactly this process that is facilitated by the precautionary rationale in the debate surrounding the PNR measure. As the issue is taken from the sphere of political

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contestation, it becomes uncontroversial and part of practical routines and techniques. It is important to notice that “[s]ecurity is therefore not only about the exceptional, that which threatens survival and goes beyond normal politics, but about everyday routines and technologies of security professionals.” (Aradau & Van Munster 2007, p. 98) Framing an issue as an existential threat that needs to be avoided at all costs not only provides options for novel and otherwise unjustifiable measures but also contributes to the implementation of said actions into the everyday practical routines and technical working processes of (security) politics.

3. Defining depoliticisation: From the political field of

struggles to the mundane politics of the field of force

A changing discourse from a political debate towards a securitised one has a certain effect on the content and the participants. In the words of Didier Bigo, an important scholar of the Paris School, we will observe that the initial debate showed characteristics of a ‘field of struggles’, in which actors are “competing with each other and the issues at stake are part of the political.” (Wesseling 2013, p. 104) Contrasting positions are to be found in the early debate on the PNR proposal of 2007, as criticism by the European Parliament was raised, concerning the fundamental points of necessity and proportionality for this massive intrusion into the private sphere of EU citizens. The later debate, concerning the 2011 proposal exhibits characteristics of a ‘field of force’, where “pressure is exercised to come to a shared—and thus depoliticized—understanding of the issues at stake in the field.” (Wesseling 2013, p. 104) The transition between these two fields can be characterised as a passage from the political sphere to the realm of politics.

In reference to Edkins, Mara Wesseling characterises such a sequence as a process of depoliticisation. It constitutes a transformation from the political realm towards the sphere of politics. While these terms seem to be not very different from one another, it is nevertheless very important to characterise both. The ‘political’ can be defined as

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“a process, a struggle, shaping the form of society and defining which issues are at stake” (Wesseling 2013, p. 101). As a topic resides in the sphere of the political, it is in a realm of contestation, where fundamental views on a subject are at odds and competing for a common interpretation. Here the frame and meaning of an event or topic is shaped. In Wesselings example of the SWIFT affair, this political phase was the only moment when the reasoning an ideological understanding behind the measure could have been contested. After leaving this phase through the process of depoliticisation, “the ‘political’ was occulted and ... the questioning of the political order and the raison d’être ... was avoided.” (Wesseling 2013, p. 141)

Politics on the other hand can be described as certain political techniques and routines, “including but not strictly confined to the doings of governments, the state apparatus, day-to-day decision-making, and technologies of governance” (Wesseling 2013, p. 101). As a topic enters this sphere, its interpretation is already settled upon. The mundane techniques of the political business take over in the form of negotiations, treaties and the like. Fundamental changes to the interpretation of the topic are out of the question.

Thus, the depoliticisation of a topic or issue can be observed as a transgression from a ‘political’ ‘field of struggles’ towards a ‘field of force’ associated with the mundane practices of ‘politics’. Now that we know the point of departure and the terminus of depoliticisation, we still need to define the path between these two. It is precisely the concept of securitisation that fills this gap of our analysis. Mara Wesseling argues that “securitization is a stronger form of depoliticization.” (Wesseling 2013, p. 103)

In this thesis a similar claim will be made. Discourses that signify substantial threats and danger modify the course of the debate. While the debate on a subject is increasingly securitized and the problem becomes framed as a security threat that must be prevented before it unfolds its destructive power, acceptable reactions and strategies to deal with it are also narrowed down. When a topic “is considered as an issue of national security, ... certain questions are no longer open for debate.” (Wesseling 2013, p. 102f.) Narrowing down the possibilities for a different interpretation and strategies by framing a topic in the security terms of precaution or

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preemption and thus taking it out of the political sphere, is to be seen as an attempt on the depoliticisation of the issue.

In the following chapter, we will define the most important documents that lead the debate and determine what frames need to be traced to analyse the precautionary reasoning and the subsequently the depoliticisation of the debate.

III. Tracing the debate through Critical Discourse

This chapter will elaborate on the methodological structure of the following analysis. Firstly, it will be defined what documents are of concern for this thesis. Secondly, it will be made clear how exactly the relevant documents are analysed with the help of Critical Discourse Analysis.

1. Defining the nodes

This thesis focuses on the analysis of documents. Thus, a careful selection process is important. The texts that are most important for the analysis fulfil a function as “nodes within the intertextual web of debate” (Hansen 2006, p. 82). Texts that fall into this category are important corner stones of the debate, as they influence the ongoing discourse by setting out concepts and interpretations that presuppose and form the subsequent discussions. This primary data consists of the two PNR proposals themselves, as they are the foundation of the debate, as well as several reactionary documents by EU civil rights actors such as the European Data Protections Supervisor (EDPS), The European Union Agency for Fundamental Rights (FRA), the Article 29 Working Party.

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2. Tracing the frames through critical discourse analysis

As expressed in the previous chapter, the discourse on PNR is inherently characterised by a depoliticising process of securitization from a ‘political’ field of struggles towards a field of force that is to be situated in the sphere of ‘politics’. This transformation resembles a struggle for interpretation. To shed light on this process, this thesis will resort to a method of analysis that especially addresses the power relations in a debate and seeks to unravel the intricate questions of discursive control. To facilitate such an analysis, we will turn to the method of Critical Discourse Analysis (CDA) as elaborated by Teun A. van Dijk.

In the tradition of Social Constructivism, we will pay special attention to ideas, norms and ideology that become evident in the analysed texts. Here discourse is defined as “an ensemble of ideas, concepts, and categories through which meaning is given.” (Hajer 2006, p. 67) CDA, as a variant of qualitative discourse analysis is highly focused on these underlying structures of a debate, as we will see.

Looking at a phenomenon, the observer, or in this case the academic is often put under the directive of objectivity. In the field of political debate, where opinions and ideals are contesting, real objectivity is nearly impossible to achieve, as the observer needs to somewhat interpret the language and context of a discourse and does so by taking a stand for himself in the ideational plane. CDA dismisses the notion of forced objectivity, as it “rejects the possibility of a “value-free” science” (van Dijk 2001, p. 352) and instead accepts the case that academic discourse is part of ideational struggles and argumentations. This is not to say that this thesis will take sides a proiri, but acknowledges the fact that it is inherently critical of the depoliticisation process of PNR.

In being critical, we will endeavour to not merely portray said process, but strive to ultimately explain the underlying structures and the conditionality of it. To achieve this, this thesis will use CDA to focus “on the ways discourse structures enact, confirm, legitimate, reproduce, or challenge relations of power and dominance” (van Dijk 2001, p. 353, emphasis in original) in the PNR debate. Power nevertheless needs to be

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understood in a certain way, when resorting to CDA. Similar to Bigos concept of the field of force, as mentioned earlier, power in CDA is seen as the means to control the course of the debate in the sense, that actors wield “(more or less) power if they are able to (more or less) control the acts ... of (members of) other groups” (van Dijk 2001, p. 355). In the case of the PNR debate this circumstance is translated as evoking agreement in a previously opposing actor thus exhibiting the characteristics of Bigos field of force.

Control over the discourse is achieved through defining the context of a debate, which is gaining the dominance of interpretation. The context in this case “is defined as the mentally represented structure of those properties of the social situation that are relevant for the production or comprehension of discourse.” (van Dijk 2001, p. 356) Controlling the interpretation of a topic as well as the definitions of crucial issues and actions, grants the power to steer the debate into a favoured direction, for example into the realm of an uncontroversial issue in the case of PNR. The CDA characterises this as the control of interpretation through ‘preferred context models’.

These context models are often subliminal in a text or discourse and are to be detected on an intertextual level, characterised as “social opinions that are “hidden” in its implicit premises and thus taken for granted by the recipients” (van Dijk 2011, p. 358) Beliefs and convictions are transmitted indirectly and without further contestation or explanation. As these preferred context models can be found and traced in various fields of study, according to the CDA, we need to take a closer look at the field of political discourse. Van Dijk elaborates, that CDA can be observed in the analysis of so called ‘frames’, that are “conceptual structures or sets of beliefs that organize political thought, policies and discourse” (van Dijk 2011, 360). It will be these frames, the underlying rationales of interpretation, that this thesis will take a closer look on, namely the precautionary narrative of the War on Terror. Terms that signify

vagueness, uncertainty, limited knowledge, predictions and suspicion are at the core of

this rationale. Security vocabulary and framing that evoke the image of threat,

insecurity and imminent danger will be complemented by the motives that are

expressed in Aradau and van Munsters concept. These emblematic issues consist of “four interlinked rationalities that allow for the deployment of specific technologies of

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government: zero risk, worst case scenario, shifting the burden of proof and serious and irreversible damage” (Aradau & Van Munster 2007, p. 103).

The purpose of tracing these frames is to exhibit the adaptation of interpratory frames by actors in the debate. As former antagonists of the PNR initiative adjust their understanding of the concept and interpretation of the issues at hand, space for fundamental criticism is significantly narrowed. The discussion traverses from a field of political struggle towards an uncontroversial understanding of the topic, representing a field of force.

IV. Analysing the intertextual nodes of the PNR debate

In the following chapters, an analysis will be undertaken to determine the prominent rationales of interpretation, the so called frames, in the Commission’s proposals. By following the reasoning of the reactionary documents through a short summary of their most important points of criticism we will be able to determine whether the Commission’s frames are adopted or what kind of interpretations are set up as a contrast.

For the sake of clarity and a better understanding of the debate that spans several years, the analysis will be split up into two main chapters. The first chapter will cover the document analysis of the 2007 PNR proposal and the respective reactions that express a fundamental opposition towards the measure. Consequently, the second chapter will focus on the 2011 PNR proposal and the reactions to it that increasingly refrain from substantial criticism thus signifying a move towards the depoliticisation of the debate.

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1. The 2007 PNR proposal and reactions to it

After the European Union adopted a PNR agreement with Canada in 2006, followed by an updated agreement with the United States of America in July 2007, the European Commission headed a proposal for a European PNR agreement that would involve flights coming into and leaving the Union’s territory. A pilot project, undertaken by the United Kingdom also predates said document and is referenced several times (Commission 2007, p. 2).

The first proposal for a European PNR system “Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes”, hereafter called the 2007 PNR proposal, suffices as a starting point for this analysis. This document underwent several adjustments due to responses from interested parties and critics. The version that is used in the following thus includes some concessions towards critical voices (Commission 2007, p. 4). After said consultations, the Commission adopted the proposal in November 2007 and sent it to the European Parliament and eligible institutions for further debate. Hence this document was the basis and point of reference for the ensuing discourse and is thus the starting point for our analysis.

a) Analysing the 2007 PNR proposal, tracing the

frames

The document starts out with an explanatory memorandum, which is followed by an introduction and the proposal itself. Throughout the whole of the document our tool of Crititcal Discourse Analysis offers us insights into the frames and rationales that run through the text. The analysis enables us to determine three essential frames. Firstly, a threat frame is of prominence in the document, signifying notions of danger and insecurity as well as suspicion. Secondly, a frame of uncertainty is evident in the proposal, expressed through uncertain predictions and referring to unknown

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individuals. Thirdly, we can observe a precautionary frame into which the previous frames feed. This third frame will exhibit signs of the precautionary rationale, as elaborated in the conceptual framework.

The threat frame prominently appears in the explanatory memorandum, with the association that terrorism

“currently constitutes one of the greatest threats to security, peace, stability, democracy and fundamental rights, values on which the European Union is founded, as well as a direct threat to European citizens.” (Commission 2007, p. 2)

A holistic notion of threat through terrorism reappears throughout the text. Terrorism is not only associated as a danger to the life and well-being of individual, but also constitutes a threat towards the European Union’s fundamental values. As such, terrorism is defined as an existential threat towards the European society itself. Terrorists and their associates are rendered as a globally acting danger and are to be found “both within and outside the borders of the EU and have proved their ability to carry out attacks and acts of violence in any continent and against any country.” (Ibid.) This wording clearly frames terrorism as an omnipresent danger, disregarding the national and ideational nature of their targets, as any society could fall into their crosshairs. It also creates the notion, that terrorists have already infiltrated the societies that seek to defend themselves against them. A general suspicion of EU citizens can thus be attributed to this particular phrasing. This multifaceted threat frame infers to the need for action and novel measures as the PNR system. In rendering the issue with the image of an existential threat, the proposal undertakes a move towards a securitisation of the issue.

Apart from rendering terrorism as an omnipresent, incalculable and existential danger, the 2007 PNR proposal adds a notion of helplessness and inability in facing this threat. Current systems and data - as for example the API data, which is already collected by air carriers - “would be sufficient only for identifying known terrorists and criminals” (Commission 2007, p. 3). Previously unknown terrorists are thus operating under the radar of the security and intelligence agencies, who are unable to track them with the existing provisions. PNR data, on the other hand, would enable the competent

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authorities “to create and update risk indicators for the assessment of such persons” (Commission 2007, p. 14) thus facilitating defence against these previously unknown threats. According to the 2007 PNR proposal, a PNR system is thus a necessity for the effective combat against terrorist threats and organised crime

The idea of unknown threats is equally important for the second frame of our analysis, the uncertainty frame. Said unknown high-risk passengers need to and can only be identified by adopting a PNR data system. The notion of uncertainty can also be found in the phrasing of the text, as it renders “persons who are or may be involved in a terrorist or organised crime offence” (Commission 2007, p. 14) as potential suspects. Both frames, uncertainty and threat, underline and support the third precautionary frame that is part of the line of reasoning in the 2007 PNR proposal. The gathering and analysis of PNR data is seen as a prerequisite in “preventing and combating terrorist offences and organised crime” (Commission 2007, p. 13). This emphasis on prevention mirrors Aradau and van Munster’s precautionary concept. Especially the idea of ‘worst case’ is to be found in the document. Since terrorism could cause potentially significant harm not only to the health and immediate surroundings, but to the very essence of the European society and its values, not even the slightest risk is to be tolerated, hence calling for a ‘zero risk’ approach. For the sake of this rationale, measures and actions must be taken beforehand. In this case, PNR data is gathered and transmitted “in advance, 24 hours before the scheduled flight departure” (Commission 2007, p. 15), to prevent said threat. All three frames are contributing to the notion that a PNR system is urgently needed and are thus part of a securitisation move of the issue.

b) Reactions to the 2007 PNR proposal

The 2007 PNR proposal generated substantial criticism by multiple actors inside and outside of the European Union’s institutional framework. The European Parliament expressed their concern and criticism on the 2007 PNR proposal and stressed “that many of the questions raised by Parliament, the Article 29 Working Party, the Working

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Party on Police and Justice, EDPS and the FRA have not been satisfactorily answered“ (European Parliament 2008). In the following, the reactions of these organisations will be analysed and evaluated, in order to illustrate whether the frames are adapted or whether they are contested. For the sake of structural clarity, each reaction will firstly be summarised and then analysed, whether and how it resonates with the aforementioned frames. With this form of analysis, we will be able to determine if a process of depoliticisation is taking place.

i. Reaction by the European Data Protection

Supervisor (EDPS)

The reaction document by the European Data Protection Supervisor states in the very first pages its overall criticism on the 2007 PNR proposal and situates it as “a further step in a movement towards a routine collection of data of individuals who are in principle not suspected of any crime.” (EDPS 2008, p. 2) As the document goes into a more detailed description of the points of criticism, four main themes are to be found. Firstly, the EDPS doubts the legitimacy of the proposal, calling into question its purpose, necessity and proportionality. A second issue is the provision of data protection. Thirdly, the EDPS scrutinises the quality of involved authorities, namely the Passenger Information Units (PIU) and the so called intermediaries. The last point of criticism involves the data transfers of PNR data to third countries outside the European Union territory. Each of these points will be briefly elaborated in the following.

The first issue of legitimacy calls into question the purpose and necessity of the PNR measure. Before establishing a PNR system, it “should be ensured that no other means is available, that would be less invasive, to reach the envisaged purpose” (EDPS 2008, p. 3). In the following, the EDPS document suggest evaluating the application of already existing provisions as the Visa Information System and the Schengen Information System (EDPS 2008, p. 5). It is, according to the EDPS, imperative that

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these measures are to be employed first and only if proven inefficient, be complemented by a novel practice such as the PNR system.

The question of proportionality, also being part of the legitimacy question, is equally scrutinised, as the PNR proposal “constitutes proactive research, on an unprecedented scale.” (Ibid.) An enormous data collection itself is seen as prone to errors and inaccuracy, while the implications for subjects could be grave. Especially the vague formulation on the process of data analysis in the 2007 PNR proposal “gives no indication on the way patterns will be established and risk assessment will be performed” (EDPS 2008, p. 3) in detail. Without a clear explanation on how risk assessment is done, the subjects of this analysis cannot predict “on what terms the public authorities are empowered to file information on their private life and make use of it.” (EDPS 2008, p. 4) Referencing the European Court of Human Right, the EDPS, criticises this circumstance, as the subjects of the PNR system are not enabled to regulate their conduct.

The EDPS argues that the question of legitimacy, especially the items of necessity and proportionality “represent a condicio sine qua non to the entry into force of the present proposal.” (EDPS 2008, p. 6)

Concerning the second issue of data protection, the EDPS document scrutinises the fact that it is not clearly stated, what organisation or institution exactly is responsible for the data analysis, as several PIUs and intermediaries could possibly be involved. This circumstance “would have a major impact primarily on the exercise of his/her rights by the data subject.” (EDPS 2008, p. 8)

The last two points of criticism, the quality of the PIU/intermediaries and data transfer to third non-EU countries, equally originate from imprecise and vague phrasings in the 2007 PNR proposal. Concerning the PIUs and intermediaries, the EDPS requires “the proposal to be much more precise with regard to the quality of the mentioned actors and the guarantees to control the performance of their tasks” (EDPS 2008, p. 10). The data transfer should also be formulated in a precise way with a focus on thorough encryption, as it is “of the utmost importance that the conditions of transfer of PNR

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data to third countries be coherent and subject to a harmonised level of protection.” (EDPS 2008, p. 11)

The EDPS thus concludes that the 2007 PNR proposal is “not in conformity with fundamental rights ... and should not be adopted.” (EDPS 2008, p. 14) This fundamental criticism is traceable throughout the EDPS paper. The most substantial point of scrutiny seems to lie in the question of legitimacy, more precisely on the key points of necessity and proportionality. Necessity for the PNR system is not given, as “new instruments must not be adopted before existing instruments have been fully implemented and proved insufficient.” (Ibid.) The proportionality of the large scale collection of data is equally unjustified and could “lead to a move towards a total surveillance society” (Ibid.)

Concerning the threat, uncertainty and precautionary frame that were found in the 2007 PNR proposal document it is notable that few attention is paid to the proposal’s reasoning when it comes to necessity. While the 2007 PNR proposal evokes the severe nature of the terrorist and criminal threat that the European Union is facing, to underline the necessity and urgency of a PNR agreement, the EDPS follows another idea of necessity. While admitting that “the purpose of fighting terrorism and organised crime appears to be clear enough and legitimate, the means used to reach this purpose leave room for discussion.” (EDPS 2008, p. 3) The necessity for a PNR system is, according to the EDPS, not a question of whether a threat justifies it, but whether existing provisions have clearly failed and whether the measures benefit is proportionate to its intrusions into fundamental rights. The EDPS notes “that such elements of justification are missing in the proposal and that the necessity and proportionality tests are not fulfilled” (EDPS 2008, p. 6)

The uncertainty frame is addressed in a way that equally departs from the 2007 PNR proposals line of reasoning. As the PNR proposal clearly stresses the unknown nature of the suspected terrorists as a facet that can be countered with the use of proactively acquired data, the EDPS criticises a general suspicion as dangerous and disproportionate. Where the uncertainty is combined with the threat frame in the PNR proposal, stressing the need for such a measure, the EDPS reaction disconnects this

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relation and instead renders the disproportionate struggle to pursue the unknown terrorists as threatening to fundamental rights.

In the 2007 PNR proposal, the threat and the uncertainty frame both contributed to the precautionary frame, stressing especially the so-called ‘worst case’ scenario. While the EDPS does not mention this idea, it nevertheless touches upon a rationale that the 2007 PNR proposal did not directly address but implicitly transported. By scrutinising the idea of general suspicion towards air passengers and the deployment of intransparent risk profiles and profiling patterns, the EDPS takes a stand against shifting the burden of proof. Suspecting and taking actions against somebody on the basis of patterns that were acquired from other suspects, makes it “extremely difficult for individuals to defend themselves against such decisions.” (EDPS 2008, p. 4)

As shown in the analysis above, the EDPS does not coincide with the interpretive frames and reasoning of the 2007 PNR proposal apart from acknowledging the need to fight terrorism. Both documents differ in their opinion concerning the necessity and the proportionality of the PNR system. While the Commission document draws on the threat, uncertainty and precautionary frame to justify PNR, the EDPS bases its judgement of the measure by its uncertain benefits and unbalanced proportion. The opposition of the EDPS in these vital arguments exhibits the tension inside the debate on the 2007 PNR proposal. The fundamental scrutiny that the EDPS expresses, suggests that the proposal is far from being uncontroversial and is situated in the ‘political’ sphere, where the interpretation of the measure is contested.

ii. Reaction by the Fundamental Rights Agency (FRA)

Much like the EDPS document, the reaction by the FRA is equally critical of the 2007 PNR proposal. Unlike the EDPS, the FRA explicitly connects its point of scrutiny with three provisions of existing legal framework and how these are infringed by the 2007 PNR proposal. Firstly, the respect for private life is elaborated on. Secondly, the

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importance of the right to data protection is considered. In the last point of criticism, the prohibition of discrimination is assessed.

Regarding the right of respect for private life, the FRA starts by criticising the imprecision and vague formulations regarding this topic. Especially the targets of the measure are unclearly defined, as for example the “term “associate” is an imprecise term which could encompass family, friends, but also acquaintances or, more distant colleagues.” (FRA 2008, p. 4) Like the EDPS, the FRA scrutinises the uncertainty concerning the targets and the unforeseeable nature of the developing risk patterns, to which the subject of such a measure would have no opportunity of adaption and self-regulation.

In this first point of criticism, given the severe infringement on personal privacy, the FRA also identifies a lack of proportionality and necessity in two major ways. Since the effectiveness of the measure is insufficiently demonstrated by references to the US and the Canadian PNR system, the benefits of a European PNR system would still “need to be demonstrated clearly and beyond doubt using robust and convincing evidence in order for the interference to be proportionate” (FRA 2008, p. 6) Additionally, the FRA refers to the fact that API and PNR data were originally not intended for law enforcement and should thus not be used for such purposes. According to the FRA, the existence of such data does not justify the use of it for the measures rendered in the 2007 PNR proposal. The FRA rather argues that

“it is important to demonstrate that these data would have to be collected , even if they were not readily available from air carriers, as essential elements for effective law enforcement against terrorism and organised crime.”(FRA 2008, p. 7)

Apart from this criticism, the FRA coincides with the EDPS argument that the necessity of the PNR system depends on the proven ineffectiveness of provisions like the Schengen Information System and the Visa Information System. There is a need for “a detailed review of existing measures ..., in order to specify why these measures do not suffice to provide the additional intelligence required.” (FRA 2008, p. 6f.)

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The second point of scrutiny, regarding the fundamental right of data protection, equally starts out by pointing to vague formulations and definition. According to the FRA, “the procedural rights of the data subject should be spelled out explicitly in any instrument prescribing the processing of PNR data for law enforcement” (FRA 2008, p. 8). Without clear phrasing about this matter, it remains unclear where the data subject should turn to exert his right to access said data.

The FRA also disapproves the uncertainty of the proposal, concerning the compliance with data standards. There is no clear description on who exactly will ensure the compliance of the involved European actors concerning this matter. Furthermore the compliance might not be provided when data is transmitted to actors outside of the Unions territory. Regarding this matter the FRA argues that since “European Union data protection standards do not apply in third countries, it is essential to have corresponding safeguard mechanisms which are as strong as possible.” (FRA 2008, p. 9)

As a concluding point of criticism, the FRA doubts the compliance of the proposal with the prohibition of discrimination. The establishment of risk indicators through large-scale data mining gives room for the possibility of profiling and thus “raises concerns with regard to the prohibition of discrimination on grounds such as race, national or ethnic origin and religion.” (FRA 2008, p. 11) Although the 2007 PNR proposal explicitly prohibits enforcement action on grounds of these elements (Commission 2007, p. 19), there is no phrase that would exclude the profiling process based on these indicators. In light of this insufficient phrasing, the FRA calls for a

“wording which explicitly prevents this and to closely monitor who in fact becomes targeted by the proposed risk assessment and whether the implementation of the Framework Decision will result in indirect discrimination on account of ethnicity, national origin or religion.” (FRA 2008, p. 12)

Nevertheless, the FRA acknowledges the partial use of said elements for the persecution of crimes and terrorist actions that were already committed. The use of such profiling techniques is however not justifiable “in the case of preventive counter-terrorism efforts” (Ibid.).

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Having summarised the FRA line of argumentation, we can now turn to the interpratory frames of the 2007 PNR proposal. Concerning the threat frame, that is used in the proposal to stress the urgency and necessity of the PNR system, the FRA, like the EDPS, does not follow its reasoning. The question of necessity is in fact closely linked to the existence and efficiency of existing provisions in the field of data gathering systems. Again, a reference to the Schengen Information System and the Visa Information System is made and stands in the way of acknowledging the necessity and urgency of a PNR project.

Regarding the uncertainty frame, the FRA equally takes a different line of reasoning. Instead of confirming the need for preventive data mining to identify unknown terrorists and their associates, the reaction document marks the introduction of risk profiles and patterns as prone to unjust discriminatory effects. The FRA makes it clear that “even if the classification underlying these methods did correspond to a higher risk posed by some categories of persons, this would still not mean that their use is justified.” (FRA 2008, p. 11)

While the precautionary reasoning of the proposal is not wholly dismissed as the FRA confirms that “preventing and fighting terrorist offences and organised crime are legitimate objects” (FRA 2008, p. 3), the means to this end are very much scrutinised and seen as unproportional. The FRA, much like the EDPS, does not acknowledge the utilitarian line of argument put forward by the 2007 PNR proposal. At this state of the debate, a successful securitisation of the PNR issue is not evident and hence a depoliticisation of the debate is not taking place.

iii. Reaction by the Article 29 Data Protection Working

Party

The Article 29 Data Protection Working Party, hereafter called the Article 29 Working Party, consists of commissaries of each European Union member state that work in the field of data protection, as well as the EDPS. In the following we will take a look at its

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reactionary document ‘Joint opinion on the proposal for a Council Framework Decision on the use of Passenger Name Records (PNR) for law enforcement purposes, presented by the Commission on 6 November 2007’. This document takes a critical stance towards the 2007 PNR proposal and was also adopted by the Working Party on Police and Justice after its release.

Similar to the EDPS reaction paper, the Article 29 Working Party begins its document with voicing concerns, claiming that the 2007 PNR proposal constitutes “a further milestone towards a European surveillance society in the name of fighting terrorism and organised crime.” (Article 29 Working Party 2007, p. 2) The Working Party bases this understanding on several points of criticism, including a lack of necessity for the measure, unreasonable scale of data collection and retention, missing safeguards concerning private data, as well as an overall inaccuracy in phrasing of vital provisions (Article 29 Working Party 2007, p. 5).

While an endeavour to harmonise the data system in air travel surveillance is welcomed, the Article 29 Working Party nevertheless agrees with the EDPS and FRA argument that a proven deficiency of existing measures “is not sufficiently substantiated in the proposal objectives” (Article 29 Working Party 2007, p. 6) and therefore misses the demonstration of necessity. As expressed in the previous reaction papers, this issue is a prerequisite for approval of the 2007 PNR proposal.

The Article 29 Working Party, however, expresses approval concerning the element of standardisation of existing data systems. It assents

“the initiative taken by the Commission to come to harmonised provisions given that third countries and individual Member States have already introduced their own system analysing passenger data which might result in incompatible technical solutions and diverging data protection regimes.” (Ibid.)

Nevertheless, the reaction document also notes the uncertainty that inherits the risk assessment and quality of the PIUs concerning the topic of harmonisation. The risk assessment as a process is not clearly rendered in the 2007 PNR proposal, as is the need for common standards concerning the PIUs. Since every member state is responsible for the set up and operation of the respective PIU body, as it is governed

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by national law, the Article 29 Working Party suspects that this “may lead to diverging national practices” (Article 29 Working Party 2007, p. 7).

As the lack of clear definitions concerning the operation of PIUs could cause negative repercussions, so could the exchange of data to third countries outside the European Union. The FRA scrutinised the element of data sharing outside the Union’s territory, as the data protection could not be ensured in this process. The Article 29 Working Party however, places its point of criticism on the argument that “the fact of an existing European PNR regime might lead to PNR demands on the basis of reciprocity by undemocratic or corrupt regimes” (Article 29 Working Party 2007, p. 8). Said regimes could use the data generated through the PNR measure to track and pursue political opposition members and the like.

In light of these uncertainties and lack of security towards sensitive data sets, the 2007 PNR proposal’s excessive scale of data mining is deemed unproportional. Adding to this point of scrutiny is the fact that “there is no explanation given why so many data elements are required in the fight against terrorism and organised crime.” (Article 29 Working Party 2007, p. 10) The Article 29 Working Party instead exclaims doubts about the efficiency of that data.

Similar to the other reaction, that this thesis analysed beforehand, there is not much evidence concerning a response to the threat, uncertainty or precautionary frame. As in the ESDPS and the FRA documents, the Article 29 Working Party does not follow the rationale of imminent threat as an element that would justify the PNR system. It rather sees a threat in the proposal itself, as it “may violate fundamental principles of recognised data protection standards” (Article 29 Working Party 2007, p. 2). Concerning the uncertainty frame, the reaction document sees no sufficient ground in the unknown nature of terrorist that would justify the use of excessive data collection methods. Speaking of the gathered data , the Working Party in fact argues that “it has to be questioned how they can be considered a reliable source of information in assessing risks.” (Article 29 Working Party 2007, p. 10) The prevention of risks, part of our precautionary frame, nevertheless finds mentioning in this phrasing. Talking about the different data collection regimes that are already in existence, the Article 29

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Working Party clearly welcomes the attempt at harmonisation, thus accepting the value of precautionary measures indirectly to a certain extent.

What sets the Article 29 Working Party’s document apart from the other reaction documents, is hence the acknowledgement of a need for the harmonisation of existing data systems and the 2007 PNR proposals attempt to set standards. However, this benefit it outweighed by the points of criticism to the extent that “Europe would take a great leap forwards towards a complete surveillance society making all travellers suspects.” (Article 29 Working Party 2007, p. 13)

The various points of criticism, that the Article 29 Working Party articulates, exhibit a fundamental opposition towards the 2007 PNR proposal. Much like the EDPS and the FRA reactions, this thorough scrutiny shows a fundamental disagreement with the proposals frames and therefore its line of reasoning. Since the frames are far from being agreed upon, the issue of PNR remains in the ‘political sphere’ where its interpretation is subject to contestation. As this is the case, the securitisation and thus the clandestine depoliticisation of the issue of air travel surveillance cannot be observed in this state of the debate.

c) Opposing views on necessity and proportionality: The field of struggles

Having analysed the 2007 PNR proposal and the assorted reactions, it becomes clear that few common ground remains. All analysed reactions nevertheless confirm the legitimacy of strengthened efforts to fight terrorism and organised crime (EDPS 2008, p. 4; FRA 2008, p. 3; Article 29 Working Party 2007, p. 2). Especially the Article 29 Working Party welcomes the endeavour of the Commission’s proposal to harmonise and standardise data analysis systems that have already been established.

Nevertheless, the various points of criticism clearly outweigh the moments of approval. All reactions collectively question the necessity and proportionality of the

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2007 PNR proposal and clearly establish among other provisions this point as their main reason for objecting the measure.

This question of legitimacy is also the main point where the reactions depart from the rationale and interpretations of the threat frame that can be found in the proposal. The terrorist threat is the main reason for the necessity of the PNR measure, according to the proposal. The reacting parties however base their understanding of necessity on the prerequisite that existing measures need to be proven inefficient before the establishment of the novel system that the 2007 PNR proposal envisions (e.g. EDPS 2008, p. 6; FRA 2008, p. 6; Article 29 Working Party 2007, p.6).

The large scale of the data gathering, envisioned by the 2007 PNR proposal, is largely justified through the uncertainty frame. This collection of large amounts of data can is needed “for obtaining intelligence and associations between known and unknown people” (Commission 2007, p. 3) and thus deemed proportional in light of the benefits. Proportionality also constitutes a vital part of the doubts on the legitimacy of the 2007 PNR proposal. All reaction documents agree on the opinion that the effectiveness of the PNR’s large-scale data gathering neither is demonstrated by comparisons with existing PNR agreements, nor are they a reliable source for a valid risk assessment (EDPS 2008, p. 5; FRA 2008, p. 5; Article 29 Working Party 2007, p. 10). Hence, the large-scale intrusion into data privacy is disproportionate, according to the proposals opponents. Hence, they do not agree with or respond to the uncertainty frame.

The precautionary frame also experiences very little resonance in the reaction documents and if there is a reaction to the precautionary narrative, then it inherits a negative connotation. In the document provided by the EDPS, we can trace criticism concerning the shift of burden of proof, a rationale connected with the precautionary concept. The criticism not only encompasses the general suspicion of air travellers but also scrutinises the difficulty “for individuals to defend themselves against such decisions.” (EDPS 2008, p. 4)

By comparing the frames of the 2007 PNR proposal and analysing whether the reaction documents follow the interpretations and rationales of these frames, a fundamental disagreement between the Commission and the proposal’s opponents becomes

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evident. The justification through the existential threat frame, the reasoning of the uncertainty frame that calls for the large-scale data gathering and the precautionary frame that connects them and lays out scenarios, are directly or indirectly rejected. By rejecting these frames, the securitisation move that we have found in the proposal proves unsuccessful. Instead, the proposal’s opponents follow their own reasoning, stressing the points of necessity and proportionality among others. A depoliticisation of the issue can not be observed in this stage of the debate, as the interpratory frames are not adapted, but are contested.

The debate thus exhibits the characteristics of a field of struggles, “within which the agents situate themselves, with the resources and the differentiated goals that structure their positions.” (Bigo 2008,p. 23) Since no common ground concerning the interpretations and reasoning towards the PNR system can be found, the topic remains controversial and ‘political’, as the debate still constitutes “a process, a struggle ... defining which issues are at stake.” (Wesseling 2013, p. 104) This lack of common ground defined the subsequent debate, stalling the 2007 PNR proposal’s adoption by the European Council, which ultimately lead to the proposal’s abandonment when the Treaty on the Functioning of the European Union (TFEU) and the following Treaty of Lisbon came into force in December 2009.

2. The 2011 PNR proposal and reactions to it

As the 2007 PNR proposal became obsolete with the ratification of the Treaty of Lisbon, it nevertheless managed to be included in the Stockholm Programme that was headed by the European Council to provide guidelines in the field of justice and home affairs (European Union 2010, p. 19). On 2 February 2011, the Commission adopted the ‘Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime’. This document was subsequently

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submitted to relevant institutions and organisations, among them again the EDPS, FRA and Article 29 Data Protection Working Party.

a) Analysing the 2011 proposal, tracing the frames

When analysing the 2011 PNR proposal, an obvious move towards a lot of the issued criticism on the first proposal can be observed. An impact assessment the proposal accompanies the new proposal, in order to give concrete data that, according to the Commission, supports the necessity and proportionality of a PNR system.

The lack of data was one of the most prominent points of criticism in the previous debate, so the Commission emphasizes that the “necessity of using PNR data is ... supported by information from third countries as well as Member States that already use such PNR data” (Commission 2011, p. 6). In the previous debate, the only data on the benefits of PNR derived from the US system.

The element of necessity is, according to the proposal, given through the incapability of existing data sets and systems. Novel PNR data must be gathered, as “API data do not enable law enforcement authorities to conduct an assessment of passenger, and therefore do not facilitate the detection of hitherto ‘unknown’ criminals or terrorists.” (Commission 2011, p. 8) As in the previous proposal, the target of the unknown individual culprit is again at the centre of attention for the reasoning of the Commission. Apart from the data sets, the existing system of data acquisition and analysis are equally insufficient as “the SIS and the VIS are mainly used as identity verification and border management tools and are only useful where the identity of a suspect is known” (Ibid.) beforehand. According to this line of argument, the gathering of PNR data is inherently necessary in the detection and persecution of individuals who are currently unidentified threats.

A relatively novel argument for the necessity of the PNR system can also be seen in a focus on the provision of harmonisation and the subsidiarity principle. Especially the Article 29 Working Party acknowledged the possibilities of harmonising existing data

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and surveillance systems through the PNR measure (Article 29 Working Party 2007, p. 6). By providing an EU-level approach the PNR system “will help to endure harmonised provisions on safeguarding data protection in the Member States.” (Commission 2011, p. 12) Existing systems can be integrated into an EU-wide measure so that a coherent data gathering and analysing framework.

Concerning the element of proportionality, it is made clear that the PNR measure is “carefully limited in scope and contains strict data protection guarantees” (Commission 2011, p. 5). Unclear statements concerning these elements were also evident among the points of criticism in the earlier debate on the 2007 PNR proposal. Apart from decreasing the retention period from 13 to 5 years and including a provision that ensures the masking of PNR data after 30 days, the proposal also limits the application. The “scope of the proposal is strictly limited and law enforcement authorities are allowed to use PNR data only for the purpose of combating an exhaustive list of specified crimes” (Commission 2011, p. 8) that are transnational in nature.

Among reactions to other points of criticism, the endeavours to prove the necessity and proportionality of the PNR system are most prominent in the 2011 PNR proposal. This can be seen as a direct answer towards the fundamental points of criticism that were headed in the debate concerning the 2007 PNR proposal. While a lot of the details, the scope and argumentation concerning proportionality and necessity has changed, it is important for our analysis to examine whether the interpratory frames of threat, uncertainty and precaution have equally changed.

The threat frame has, contrary to some details and elements of the proposal, not sufficiently changed when compared to the 2007 PNR proposal. Object of the measure is still the individuals that engage in terrorist activities and serious crime. These individuals “can be found both inside and outside the borders of the EU” (Commission 2011, p. 2) thus again attributing the element of suspicion and omnipresence to the threat frame. A novel element is however present among the targets of the threatening individuals, as they “cause severe harm to victims, inflict economic damage on a large scale and undermine the sense of security without which persons

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cannot exercise their freedom and individual rights effectively.” (Ibid.) The economic dimension is a novel characteristic of the threat frame. Nevertheless, this economic factor adds to the image of an essential threat, as possible damage to it prevents European citizens from executing their rights. It is this economic aspect that it extensively backed by empirical data and statistics in the following section of the proposal, mostly focusing on adverse effects of human and drug trafficking.

As in the previous proposal, the threat frame plays an important part in underlining the necessity of the PNR measure, but is also accompanied by public demand. Additionally, the 2011 PNR proposal cites public support for the system, as “four out of five Europeans wish to see stronger action at EU level against organised crime and terrorism.” (Commission 2011, p. 3) Likewise, the Stockholm programme and the inclusion of the PNR is mentioned, underlining the need this measure (Commission 2011, p. 14).

Considering the uncertainty frame, the 2011 PNR proposal, as the previous proposal, sets its focus on “persons who were previously “unknown”. i.e. persons previously unsuspected of involvement in serious crime and terrorism” (Commission 2011, p. 15). The notion that the European society is unable to cope with these individuals is also not a new element of the uncertainty frame. Existing systems prove to be inadequate in handling this danger.

The precautionary frame is, as it was in the 2007 PNR proposal, equally evident in the new proposal. To flag and take action against the ‘unknown’ individuals is among the most prominent provisions of the 2011 PNR proposal and included with a paragraph that explicitly calls for the ‘pro-active’ use of Passenger Name Records. This mode of utilisation facilitates a “pre-arrival and pre-departure assessment of passengers” (Commission 2011, p. 4). The precautionary scenario of ‘zero risk’ again underlies this line of reasoning, preventing all possible danger by “any persons who may be involved in a terrorist offence or serious transnational crime” (Commission 2011, p. 22). Again, all three frames underline the importance and necessity of the PNR system.

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b) Reactions to the 2011 proposal

The Committee on Civil Liberties, Justice and Home Affairs (LIBE), a standing committee of the European Parliament, rejected the proposal in April 2013 (European Parliament 2013). To further investigate on the points of criticism that civil rights institution had, we will look at the reaction documents by the same actors that responded to the 2007 PNR proposal.

i. Reaction by the European Data Protection Supervisor

(EDPS)

The EDPS reaction document starts out with the recognition of several changes in the 2011 PNR proposal. A notion of approval is evident as the “EDPS acknowledges the visible improvements in terms of data protection in the present Proposal, compared to the version” (EDPS 2011, p. 2) of 2007. Such enhancement is nevertheless sporadic, according to the EDPS.

Major points of criticism concerning the 2007 PNR proposal were the elements of necessity and proportionality. The same scrutiny is addressed in light of the new proposal, as “the necessity and the proportionality of the data processing is an absolute prerequisite” (EDPS 2011, p. 3) that must be met before adopting the measure. For this exact reason, the Commission attached an impact assessment and extensive data to the proposal. However, the included data refers mainly to economic damage and consequences through terrorism and serious crime “which are not directly related to the purpose of the Proposal” (EDPS 2011, p. 4) and are thus not sufficiently proving the proposals necessity. Likewise, a “clear demonstration of the fact that the measures are essential and that there are no less intrusive alternatives is missing” (Ibid.), hence another prerequisite for the necessity of the measure is, according to the EDPS, not met.

The depoliticisation of air travel surveillance : the changing debate on the European passenger name record initiative