Honorable David L. Aaron
Under Secretary for International Trade
International Trade Administration
U.S. Department of Commerce
Room 3850
14th St. and Constitution Ave., NW
Washington, DC 20230
Re: European Union Privacy Directive Safe Harbor Principles
Dear Ambassador Aaron:
The Air Transport Association of America appreciates the opportunity to comment on the November 15th version of the draft European Union privacy directive safe harbor principles and associated documents. ATA is the trade and service of the larger U.S. passenger and cargo airlines. Many of our members operate between the United States and EU Member States.
Overview
ATA members that serve EU Member States routinely collect and transmit from the EU to the United States information that may be subject to the privacy directive. Our members transmit such information to implement contracts with their customers and to comply with governmental requirements.
Transmissions to governmental authorities in the United States are pursuant to applicable statutory and regulatory requirements, and facilitate the entry into this country of the passenger or cargo shipment. ATA members also transmit information to private sector third parties such as customs brokers, air freight forwarders, and airline alliance partners. In addition, ATA members that operate in EU Member States must consider the effect of the privacy directive on their human resources and employee data.
For these reasons, ATA members have a strong interest in the creation and implementation of a system that guarantees the continued transfer of covered information from the EU to the United States in a manner in which public confidence in the process is maintained. Equally important, however, the system that is developed needs to provide flexibility in complying with the safe harbor principles. Airlines operate in a high volume, extremely time-sensitive environment that must promptly respond to customer demands. Our customers will suffer if the system that is developed interferes with our ability to meet their needs.
We therefore very much appreciate the Department of Commerce's work on the safe harbor principles. Clear, predictable and workable compliance arrangements are indispensable if the consumer needs of affected individuals are to be most effectively accommodated within the directive's framework. We especially appreciate the efforts of you and your colleagues in addressing matters of particular significance to the airline industry, most notably in the preparation of FAQ 13.
The Safe Harbor Principles
Choice. ATA supports the Department's efforts to remove the second sentence of the choice provision.(1) The European Union advocates its inclusion. We, however, agree with the Department that the language at issue goes beyond the requirements of the privacy directive. That is the decisive consideration. Moreover, inclusion of the language would place significant burdens on U.S. organizations that would far outweigh concerns about the potential disclosure without notice to third parties. To inform customers subject to the privacy directive about the choice regarding disclosure to third parties in these circumstances, airlines would have to potentially distinguish between those passengers subject to the directive and those not subject to it. The potential need to solicit additional information to determine to whom this portion of the principles would apply would in itself raise privacy concerns.
Enforcement. The evolution of the enforcement component of the safe harbor principles to a predominantly U.S.-based arrangement that you noted in your November 15th letter to interested parties is particularly important. Such an arrangement clarifies where and in what manner complaints are to be pursued and will presumably prevent duplicative enforcement efforts--one in the United States and one in the EU Member State--from occurring. Avoidance of such duplication is indispensable to the effectiveness of the safe harbor framework.
Onward Transfer. As we noted in our April 7th letter to you, there are several U.S. Government programs involving airlines' transmission from overseas locations to the United States of limited categories of passenger information. The most notable of these programs is the Advance Passenger Information System, which is an Immigration and Naturalization Service, U.S. Customs Service, and U.S. Department of Agriculture program. It facilitates entry of passengers into the United States by providing information that is already required upon arrival in this country well before the aircraft lands at a U.S. airport of entry. Advance provision of such information thus accelerates the passenger's clearance. Our view is that such programs are consistent with both the directive and the safe harbor principles because of their governmental purposes and the restricted dissemination of information permissible under them.
FAQs. FAQ 13 provides additional understanding about the transfer to organizations located outside of the EU of airline passenger reservation and other travel information, including special needs information. We appreciate the clarification of the issues that are covered in it.
Implementation. You noted in your November 9th briefing that the Department and the EU have not yet agreed upon the implementation period for the safe harbor framework. Your draft letter to the European Commission reflects that situation. We urge that the period be two years. U.S. organizations will have to review their existing practices, develop new procedures, and train their employees once the EU accepts the safe harbor principles. Moreover, companies will have to create the enforcement programs contemplated in them. These steps will take time and those considerations should be recognized in the implementation period that is established.
Conclusion
We appreciate the opportunity to provide our views about the safe harbor
principles and their associated FAQs. Creation of a workable arrangement
for compliance with transmission to the United States of information that
the directive covers is in the best interests of consumers and commerce
between EU Member States and the United States.
Sincerely,
James L. Casey
Vice President and Deputy General Counsel
Air Transport Association of America, Inc.
1. That sentence states: "Where choice is offered concerning disclosures to third parties not subscribing to the safe harbor principles, not subject to the Directive or another adequacy finding, nor bound by written agreement to provide at least the same level of protection as required by the principles, this fact must be made clear when individuals are invited to exercise their choice."