Dog Fight by Arthur Rizer

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Dog Fight: Did the International Battle over Airline Passenger Name Records Enable the Christmas-Day Bomber?

by Arthur Rizer

Catholic University Law Review

Volume 60

Article 5

Issue 1 Fall 2010

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Recommended Citation Arthur Rizer, Dog Fight: Did the International Battle over Airline Passenger Name Records Enable the Christmas-Day Bomber?, 60 Cath. U.

  1. Rev. 77 (2011). Available at: http://scholarship.law.edu/lawreview/vol60/iss1/5

This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu .

DOG FIGHT: DID THE INTERNATIONAL BATTLE OVER AIRLINE PASSENGER NAME RECORDS ENABLE THE CHRISTMAS-DAY BOMBER?

ArthurRizer+

  1. CONFLICTING PHILOSOPHIES ON PRIVACY: UNITED STATES V.EUROPEAN UNION…………………………………………………..79
  2. HISTORY OF THE LEGAL CONFLICT ………….. ……………… 83
  3. September 11, 2001: Everything Changes……………….. 83
  4. November 11, 2001: The Aviation andTransportationSecurity Act………………………………………85
  5. May 28, 2004. Agreement to Transfer ……………………….. 86
  6. May 30, 2006: The EuropeanCourtofJustice Rejects the Agreement …………………………………… 88
  7. July 23, 2007: A New Agreement Is Reached………… ………….. 89

III.

BALANCING COUNTERVAILING POSITIONS ……………………. 91

  1. New Challenges ………………………………… 92
  2. New Laws? ……………………………………. 96
  3. BalancingSecurity ofData with Security ofa Nation.. ………. 99
  4. CONCLUSION ………………………………………… 104

Almost immediately after the terrorist attacks on September 11, 2001, the United States and the European Union (EU) started a battle over Passenger Name Records (PNR). After the attacks, the United States began to assignrisk-assessment ratings to all travelers entering and exiting the country.2 As part of this risk assessment, the United States gathered passenger information, in the form of PNRs, from airline records.3 This information was shared among domestic and international law-enforcement agencies as part of a data-sharing agreement.4 Despite an ostensible motivation to collaborate on the

+ Arthur Rizer works as a trial attorney at the United States Department of Justice. In addition, Mr. Rizer is an Adjunct Professor of Law at Georgetown University Law Center. The views in this Article are not those of the Department of Justice or Georgetown Law Center. The author would like to thank his family for their support. He would also like to thank Melodie Bales, Leah Branch, Christina Downs, Craig Nadeau, Nicole Picard, Kristen Sinisi, and the staff of the Catholic University Law Review for their hard work on this Article.

  1. See Matthew R. VanWasshnova, Note, Data Protection Conflicts Between the United States andthe European Union in the War on Terror: Lessons Learnedfrom the Existing System ofFinancialInformationExchange, 69 CASE W. RES. J. INT’L L. 827, 833 (2007).
  2. D. Richard Rasmussen, Is International Travel Per Se Suspicion of Terrorism? The Dispute Between the United States and European Union over Passenger Name Record Data Transfers, 26 WIS. INT’L L.J. 551, 551 (2008).
  3. Id.
  4. Id. at 551-52.

77

agreement, “the United States and the European Union have struggled to find common legal justification for PNR transfers.”5 Specifically, after the European Court of Justice (ECJ) struck the data-sharing agreement between the European Union and the United States, a small legal-war regarding the use and sharing of PNRs erupted between data-privacy advocates and national-security promoters who believe security interests trump privacy concerns.6

On December 25, 2009, amid this data-sharing conflict, Umar Farouk Abdul Mutallab attempted to detonate plastic explosives that were concealed in his underwear while on an airplane.7 Mutallab travelled freely to Amsterdam from Nigeria and then to Detroit aboard Northwest Airlines Flight 253. This failed attack sheds new light on the discussion of PNR-sharing and raises the question of whether the limitations on PNR-sharing enabled an attack like this to happen. Indeed, the December 25th attempted attack “is a vivid reminder that terrorists will stop at nothing to kill Americans.”9 And, as Valerie Caproni, General Counsel to the Federal Bureau of Investigation (FBI) stated, “the attempted bombing on December 25th was a failure to connect dots that probably could have been connected.” 0

This Article will explore the legal history of PNR-sharing starting from September 11, 2001 to the signing of the new sharing agreement dated July 23, 2007. In addition, this Article will discuss the roots of the PNR conflict, focusing on the conflicting approaches the United States and the European Union take regarding privacy issues and how these approaches led to the discord over PNRs. Discovering the roots of this conflict is particularly important in order for the two governments to avoid future tension.

This Article will also survey the upcoming challenges to the current agreement and the new PNR laws on the horizon,” and address how the Lisbon Treaty may affect this issue. Last, this Article will scrutinize the new agreement between the United States and the European Union, specifically

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