Key Benefits:
(State on 23 December 2008)
Translation 1
| Federal Department |
Bern, 23 December 2008 |
| Foreign Affairs |
|
| Embassy of the United States |
|
| 3000 Bern |
The Federal Department of Foreign Affairs of the Swiss Confederation presents its compliments to the Embassy of the United States of America and it has the honour to acknowledge receipt of note 119 of 23 December 2008 on the transfer of data from the Passenger Name Record (PNR) whose contents are as follows:
" On behalf of the Government of the United States, the Embassy is pleased to inform the Swiss Government that the PNR data in question is subject to the privacy measures applicable to PNR data, as set out in the opinion System of Records Notice (SORN) for the Automated Targeting System (ATS) established by the U.S. Department of Homeland Security Bureau of Customs and Border Protection (CPB) (DHS). A system of records (System of Records) is a group of records controlled by one of the agencies of the Government of the United States and which allows for the retrieval of information from the name of an individual, number or symbol Identification or any other identifier associated with an individual. The United States legislation requires any agency managing a file system to publish a notice in the Federal Register. The SORN for ATS was published in the Federal Register on August 6, 2007 (Volume 72, Number 150) [pages 43650 to 43656].
PNR data recorded on flights between Switzerland and the United States are subject to the Passenger Name Record (PNR) data set out in the ATS-Passenger (ATS-P), which is one of the six constituent modules of the ATS. The SORN describes the procedures for the collection, analysis, archiving of information on passengers' files and the procedures for access and rectification applicable to all passengers. This part of the SORN relates to: the purpose of the processing of passengers' records, routine uses of the system, including cases where PNR data can be shared with other agencies or governments; data elements which Include passenger files; the individuals concerned by the system; the targeting of risk travellers based on PNR data; the application of the administrative guarantees of the United States law on privacy (U.S. Privacy Act) on records of individuals, contained in mixed systems, which are not citizens of United States or non-permanent resident status; length of retention and disposal of PNR data; and opportunities for individuals to access or correct their own PNR data.
The SORN relating to the ATS requires the Government of the United States to grant the PNR data recorded on flights between the United States and Switzerland and provided to the Government of the United States under the legislation of the United States in substance Guarantees in respect of the protection of privacy that those referred to in the Agreement between the European Union and the United States of America on the processing and transfer of passenger name record data (PNR) by carriers To the US Department of Homeland Security (DHS) (2007 PNR Agreement), signed at Washington and Brussels on 23 and 26 July 2007 respectively. The Government of the United States assures the Swiss Government that the PNR data collected on flights between the United States and Switzerland will not be treated differently than the PNR data governed by the 2007 PNR agreement.
In the light of the above:
1. The Government of the United States informs the Government of Switzerland of any change in the SORN relating to the ATS capable of affecting the processing of PNR data contained in the ATS-P and the measures to protect privacy Applicable to the latter; or any modification of the 2007 PNR agreement or in the event of a new successor agreement. If the Government of Switzerland considers that such notification is incompatible with Swiss data protection legislation, consultations shall take place within sixty (60) days in accordance with paragraph 6 below.
2. With regard to the collection of these PNR data, DHS continues to give preference to the transmission of PNR data by Swiss air carriers through an "export system". This system must continue to be deployed in accordance with the technical requirements of DHS. The transition to an export system does not, however, give airlines discretion in deciding what data to export, when or how to do so.
The Government of the United States appreciates the support that the Swiss Government is currently providing to these measures as well as other counter-terrorism measures.
In order to support these efforts, the Government of the United States and the Government of Switzerland will review, at regular intervals, the implementation of this Agreement in Principle, as well as the measures and practices of the United States and Switzerland in respect of Passengers' files in order to contribute to the efficient operation of our handling of PNR data and to the protection of the privacy they provide. The Government of the United States will request on a reciprocal basis information on Swiss PNR systems as part of this periodic review, and representatives of the Swiss Government with PNR systems will be invited to participate Discussions. The Head of the Federal Department of the Environment, Transport, Energy and Communication (DETEC) and the US Secretary of Homeland Security, both parties may also appoint, to represent them, other officials Which are acceptable to each of them, will jointly determine the scope and manner of such review.
4. The Government of Switzerland confirms that the processing by the Government of the United States of the PNR data identified on flights between Switzerland and the United States according to the information contained in this note meets the requirements of the Swiss legislation on data protection in the field of data transfer to third countries.
5. The Swiss Government continues to allow air carriers operating passenger flights between Switzerland and the United States to make available to the Government of the United States PNR data in accordance with United States law And pursuant to this Agreement in Principle.
The two Governments shall endeavour to resolve by mutual agreement any difficulties or doubts arising from the interpretation or application of this Agreement in principle.
The Embassy also proposes on behalf of the Government of the United States and provided that this proposal is acceptable to the Government of Switzerland, that the present note and the memorandum in favour of the Ministry constitute an agreement in principle Between the two Governments which will enter into force on the date of the note by the Ministry and shall remain so unless one of the Governments notifies in writing two (2) months in advance to the other Government its intention to terminate the agreement."
The Federal Department of Foreign Affairs has the honour to confirm that the proposal made in the note of the Embassy is acceptable to the Government of Switzerland, and that the note from the Embassy as well as the present note constitute one Agreement in principle between the two Governments which will enter into force on the date of this note and shall remain so unless one of the Governments notifies the other Government in writing two months in advance of its intention to terminate the agreement.
The Federal Department of Foreign Affairs takes this opportunity to renew to the Embassy of the United States the assurance of its highest consideration.
1 Translation of original English text.
