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The above notwithstanding, there are certain fundamental obligations that the State receiving the data has to meet. Firstly, States should require PNR data only of those passengers on .ights that are scheduled to enter, depart or transit through airports situated in their territories. Secondly, a State obtaining PNR information should, as a minimum limit the use of data to the purpose for which it collects it. States must restrict access to such data, ensure that the data is adequately protected, and limit the period of data storage, consistent with the purposes for which data is transferred. States must also ensure that individuals are able to request disclosure of the data that is held on them, consistent with the guidelines, in order to request corrections or notations, if necessary. More importantly, they must ensure that individuals aggrieved by the PNR data collection and usage process have an opportunity for redress.
The responsibility of ensuring that their public authorities have the appropriate legal authority to process PNR data requested from aircraft operators, in a manner that observes the guidelines, devolves entirely upon the States. They have been requested by ICAO to forward the full texts of legislation pertaining to PNR data dissemination and use to ICAO for online dissemination to other States, for information. The State concerned will be responsible for responding to any queries arising from such legislation.
III. Advantages of Uni.ed Guidelines
Through the PNR Data Guidelines ICAO has introduced uniform measures for PNR data transfer and the subsequent handling of that data by the States concerned. The guidelines are both durable and easy to follow, making them cost effective for the parties concerned. They would ensure accuracy of information, while at the
D. The Passenger Name Record 127
same time protecting the data subject against encroachment of his privacy. The Guidelines call for completeness of data and the need for timely submissions and effective collection of data. They also ensure that data management will be ef.cient and ef.cacious. From a practical perspective, the guidelines also provide useful directions assisting States in designing data requirements and procedures, in order to minimize technical dif.culties that might prove tooonerous and may impair the implementation of the uniform measures suggested. The Guidelines also contain detailed instructions with a view to assisting both air carriers and States on PNR data transfer from an operator’s system to a State and the management of the data including arrangements for storage and protection.
States are enabled, by the guidelines, to design systems and establish arrange-ments that are compatible with the guidelines while not impairing their ability to implement their laws and enforce them. The guidelines do not interfere with the preservation of national security and public safety of a State. Arguably, one of the most important features of the uni.ed PNR data guidelines is that, by their very nature, they would effectively obviate the complexities that aircraft operators could face with regard to legal, technical and .nancial issues if they were to be requiredto respond to multiple, unilaterally imposed or bilaterally agreed PNR data transfer requirements that differ substantially from one another.
1. Extra Territoriality
States also have the responsibility of enacting explicit legal provisions concerning data transfer. Such legislation should clearly elaborate on the reasons for requiring PNR data, or provide explanatory materialaccompanying such laws or regulations, as appropriate. Since an aircraft operator is obliged to comply with the laws of both the State from which it transports passengers (State of departure) and the State to which these passengers are transported (destination State), when a destination State legislates with regard to its PNR data transfer requirements, it should do so cognizant of the fact that existing laws of other States may affect operators’ ability to comply with these requirements. Therefore, where there could be an inconsis-tency between two legal regimes of the departure State and thedestination State, or where a con.ict arises between any two States, or where an operator advises of a con.ict, The ICAO guidelines suggest that the States involved should consult each other to determine what might be done to enable affected operators to continue to operate within the bounds of the laws in both States.
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Aviation Security Law 航空安全法(97)
