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D. The Passenger Name Record
in early March 2002,388 it informed the Of.ce of Regulations and Rulings of the
United States of its support towards the API system and its compliance by a Memorandum of Understanding [hereinafter referred to as: MOU] with the US Customs of 1998. This MOU consisted of voluntary release of passenger informa-tion to the US. According to this new Aviation and Transportation and Security Act, British Airways believes that an automated version should be considered in order for the collection of data such as PNR information so long as it is not stored manually and complies with the machine readable information.
British Airways also considers this as the best method of transferring passenger information from the airline system to the government. It considered the automatic PNR release and ruled that it would not affect the UK Data Protection Act.389 BA’s pretension is that the carrier should not be obliged to change any reservation system, which could encounter additional costs or in the least reduce them to a strict minimum.390 The WCO also considered this position to be viable as it announced in its recommendation that information should be kept to a strict minimum or it otherwise, such operations become time and cost consuming:
8.2.1 Perhaps the most critical aspect of API is the means by which the data to be transmitted to the Border Control Agencies in the destination country is captured. Data capture can be costly, time consuming, labour intensive and error prone. The capture of data concerning departing passengers at the airport of departure introduces a delay in the check in process that could, if not managed properly, offset the potential advantage to passengers provided by ef.cient API applications. If the check-in process in unduly prolonged, then API will simply shift much of the delays and congestion away from the arrival area to the departure area. It is vital therefore that the effect of API on the check-in process is kept to the absolute minimum.391
However, the WCO also claims that API can also reduce staff costs because of this automated process that can therefore bring some form of saving for the air carrier.392
Furthermore, such information should not permit access to any other passenger that is not on a .ight bound to the US.393
388British Airways letter dated 1 March 2002 (not published).
389UK Data Protection Act, online: http://www.legislation.hmso.gov.uk/acts1998/19980029.htm
(date accessed: 10 January 2003).
390Refer to supra note 9 at clause 6.5.1 and 6.5.2.
391Ibid. at clause 8.2.1.
392Ibid. at clause 6.9.3. and 6.3.
393Refer to supra note 59 at attachment A:
(3) A general request to oblige the carrier to give access only to passenger name record information relating to passengers whose itineraries include at least one .ight operated to or from or within the United States. In the event that carrier’s systems are not designed or con.gured so as to allow such access without also giving access to information about other passengers, the Customs Service shall adopt procedures or take other appropriate measures to ensure that its of.cers do not access information relating to such other passengers. In
This air carrier alsohad speci.ed its concerns to the US Customs in a previous correspondence whereas the American legislation gave no assurance that other information pertaining to that were not bound to the US would be transmitted.394
Virgin Atlantic also expressed grave concerns over PNR transmission as some private information relating to passenger’s .le are private and wouldcontravene the UK Data Protection Act, according to local management.395 According to autho-rities, it is now necessary under the UK Data Protection Act that recording of personal data of passengers do not leave the territory of the European Economic Area unless enough protection can be assured. In order to achieve this, the US Customs Service Agency would have to adopt the Safe Harbour Principles, set forth by the European Commission, under EU Directive (94/46/EC).396 In this Directive, European companies can only send out information to any foreign country outside of the community if it should so correspond to a reasonable protection of sharing of information.
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