European Parliament to Consider ‘Symbolic’ Resolutions To Suspend or Terminate SWIFT

The EU-U.S. Terrorist Finance Tracking Program (TFTP) should be suspended, terminated or replaced by a different agreement because of allegations the National Security Agency accessed personal banking data held in the Society for Worldwide Interbank Financial Telecommunication (SWIFT) database in Europe, said European Parliament members (MEPs) in dueling motions for resolutions filed Wednesday. The resolutions split along the same party lines as last week’s debate in the Civil Liberties, Justice and Home Affairs (LIBE) Committee (CD Oct 11 p7). They will be voted on next week, MEP Claude Moraes, of the Socialists and Democrats (S&D) and U.K., told us Thursday. However, he said, lawmakers genuinely don’t know which version will be adopted; and whichever is approved will be “merely symbolic” because Parliament lacks the power to take action on the TFTP. Meanwhile, Parliament’s probe of U.S. spying comes to Washington this month.

It’s “highly unlikely” the agreement will be suspended, said Moraes, who will draft the report on LIBE’s investigation into U.S. mass surveillance. Suspension or termination requires a two-thirds majority vote by the EU Council, he said.

Moraes joined two other S&D members in calling for temporary suspension of the TFTP (http://bit.ly/1cxOKR2). They said the European Parliament consented to the agreement only “on account of the strengthened protection it afforded” for safeguarding Europeans’ personal data and privacy rights. The U.S. Treasury, however, has classified a large amount of relevant information on the TFTP “EU Secret,” they said, and, according to data protection authorities, the current procedure for individuals to access their data may not be adequate. The European Commission was supposed to propose in 2011 a legal and technical framework for extraction of data on EU territory but hasn’t done so, they said: “Talks between Commission services and the US administration cannot be considered to count as an investigation, nor does mere reliance on statements by the U.S.”

Given the EU’s core goal to promote freedom of the individual, security measures, including counter-terrorism measures, in support of that freedom must be pursued through the rule of law and be subject to fundamental rights, including of privacy, the S&D resolution said. It “reiterates its rejection of bulk data exchanges” with the U.S. in the name of the fight against terrorism, saying revelations about NSA having direct access to financial payment messages and related data would be a clear breach of the TFTP. Data-sharing pacts with the U.S must rest on a coherent legal data protection framework, but the TFTP hasn’t been implemented according to data protection standards, it said.

The resolution asked the EC to temporarily suspend the agreement until several conditions for opening talks on its resumption have been met, and asked the Council and EU governments to authorize the Europol Cybercrime Center to investigate charges of unauthorized access to the SWIFT data. Moreover, it said, although Parliament has no formal powers to initiate suspension or termination of the agreement, “the Commission will have to act if Parliament withdraws its support."

A second resolution (http://bit.ly/19U9G69), submitted by Jan Philipp Albrecht, of the Greens/European Free Alliance and Germany, said the interception of SWIFT data by the NSA outside the TFTP may in itself breach the agreement “and should therefore automatically lead to a call for termination.” That document also “deplores the fact” that not one EU country has asked Europol to investigate possible U.S. violations, and asks the EC to take necessary steps to terminate the TFTP immediately.

But six members of the center-right European People’s Party (EPP) said (http://bit.ly/19TPaAW) they firmly believe “in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights while ensuring the utmost respect for privacy and data protection.” The TFTP is an essential tool in the fight against terror and serious cross-border crime, they said. The resolution “recalls the financial impact of the terror attacks of 9/11, and for that reason stresses the importance of terrorist finance tracking policies as a key tool.” Suspending the agreement should only be considered if the EU is able to extract the same sort of data or if the agreed arrangements for handling personal data aren’t respected, it said

The EPP MEPs urged the EC to look into whether the agreement has been breached but not to suspend it without “solid and fundamental reasons.” They asked the EC to get on with proposing a system for extraction of data on EU territory “without any further delay."

Parliament’s mass spying probe shifts to Washington Oct. 28-30, Moraes told us. It will include a meeting with David Cohen, U.S. Treasury undersecretary for terrorism and financial intelligence, to discuss the TFTP. Moraes said MEPs will question Cohen based on a Sept. 18 letter he sent to Home Affairs Commissioner Cecilia Malmström. They want reassurances that the TFTP wasn’t compromised, he said. The key point is that the agreement is valuable as a security mechanism and it’s in Parliament’s interest to know it wasn’t breached, he said. Albrecht said he will “ask for the political will to agree on common standards” for protection of personal data between the EU and U.S.