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Japan-EU Passenger Name Record Negotiations and Their Implications

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Human-Centric Computing in a Data-Driven Society (HCC 2020)

Part of the book series: IFIP Advances in Information and Communication Technology ((IFIPAICT,volume 590))

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Abstract

EU and Japan started negotiations of an agreement on passenger name record (“PNR”) while EU-CANADA PNR negotiations are concluding. Responding to the call from United Nations Security Council, International Civil Aviation Organization is discussing amendments on the PNR to the Standards and Recommended Practices on Facilitation. In these bi-lateral and global circumstances, what should be desirable outcome of negotiations on Japan-EU PNR Agreement and could be broader issues left behind?

In this contribution, PNR and the nature of its processing are overviewed (Sect. 2), and their current legal and practical framework in Japan is critically confirmed (Sect. 3). Then Japanese PNR system is compared with the original draft negotiating directive of Japan-EU PNR Agreement with author’s perspective (Sect. 4) and finally global implications for the PNR and importance on (relatively legacy) technology and practice of algorithmic pattern-based search are explored.

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Notes

  1. 1.

    CJEU Opinion 1/15 ECLI:EU:C:2017:592. See Maruhashi T (2019) Draft PNR Agreement between CANADA and EU; CJEU Opinion 1/15 - Distance from Mass Surveillance and Data Retention – Information Network Law. 17:63–91. (in Japanese).

  2. 2.

    Para. 11 of Canada-EU Summit Joint Declaration July 17–18, 2019, Montreal.

  3. 3.

    Council Decision (EU) 2019/2107, which preamble 14 states “The position of the Union is established in accordance with the applicable Union legal framework on data protection and PNR data, namely Regulation (EU) 2016/679, Directive (EU) 2016/680 and [PNR] Directive (EU) 2016/681, as well as the Treaties of the European Union and CFR as interpreted in the relevant case law of the CJEU, in particular Opinion 1/15”.

  4. 4.

    Proposed by a task force in ICAO information paper FALP/11-IP/1(December 2019) and approved with amendments at ICAO Facilitation Panel Eleventh Meeting. See Meeting Report FALP/11 (January 2020).

  5. 5.

    A. Iizuka, Director of the Customs and Tariff Bureau, Ministry of Finance (Government response in the Diet on 23 March 2018 in Japanese). European Commission expressed its view on the negotiations that “Having arrangements in place in time for the 2020 Olympics would bring a real security dividend.” in its Twentieth Progress Report towards an effective and genuine Security Union COM(2019) 552 final 30.10.2019.

  6. 6.

    Japan-EU Strategic Partnership Agreement was signed in July 2018 and partly became effective on 1 February 2019. Its Article 37 reads ‘The Parties shall endeavour to use, to the extent consistent with their respective laws and regulations, available tools, such as passenger name records, to prevent and combat acts of terrorism and serious crimes, while respecting the right to privacy and the protection of personal data’.

  7. 7.

    European Commission, COM(2019) 420 final (September 2019). The Economic and Financial Affairs Council authorised revised version of the NDs (12762/19 + ADD 1) on 18 February 2020, which is still confidential as of 24 June 2020. See also EDPS Opinion 6/2019 on the negotiating mandate of an Agreement between the EU and Japan for the transfer and use of Passenger Name Record data 25-Oct-2019, available at https://edps.europa.eu/data-protection/our-work/publications/opinions/eu-japan-passenger-name-record-data-agreement_en.

  8. 8.

    Management Summary on Passenger-related Information [‘Umbrella Document’ version 2.0 – July 2017] published by the International Civil Aviation Organisation (ICAO), the World Customs Organisation (WCO) and the International Air Transport Association (IATA).

  9. 9.

    See PNRGOV EDIFACT Message Implementation Guides updated, available at https://www.iata.org/en/publications/api-pnr-toolkit/#tab-3.

  10. 10.

    See Zarsky TZ (2013) Transparent predictions. U Ill L Rev 1503, arguing importance of modest transparency in prediction process focusing on pattern-based searches.

  11. 11.

    Office of the Privacy Commissioner Canada, 2016–17 Annual Report to Parliament on the Personal Information Protection and Electronic Documents Act and the Privacy Act.

  12. 12.

    Privacy Impact Assessment Update for the Automated Targeting System DHS/CBP/PIA-006(e) January 13, 2017.

  13. 13.

    NACCS is a system for online processing of procedures taken with Customs, ISA and other relevant administrative authorities or related private-sector services for arriving/departing ships and aircraft or import/export cargo. See The service homepage, available at https://bbs.naccscenter.com/naccs/dfw/web/ (Japanese).

  14. 14.

    A Special Corporation governed by Act on Processing, etc. of Business Related to Import and Export by Means of Electronic Data Processing System (Act No. 54 of 1977).

  15. 15.

    Currently only ARINC can connect NACCS Center for PNR “Push”.

  16. 16.

    Cabinet Order No. 319 of October 4, 1951.

  17. 17.

    Regulation for Enforcement of the Immigration Control and Refugee Recognition Act (Ministry of Justice Order No. 54 of 1981).

  18. 18.

    Act No. 61 of 1954.

  19. 19.

    Cabinet Order No.150 of 1954.

  20. 20.

    Regulation for Enforcement of the Customs Law (Ministry of Finance Order No. 55 of 1966) (“RECL”).

  21. 21.

    ‘Enhancement for Reporting Scheme of “Advance Information on Passenger” (ANNEX)’ presented by Customs to Customs Subcommittee, Tariffs and Foreign Exchange Committee 24 Nov 2016 (in Japanese).

  22. 22.

    Section 14, Article 15 of CL and Article 2-5 of RECL. See also Enhancement of Reporting Scheme of Advance Electronic Information (AEI) on Passengers and Crews (May 2017), available at https://www.customs.go.jp/mizugiwa/ryogu/kekka03.pdf.

  23. 23.

    https://bbs.naccscenter.com/naccs/dfw/web/data/customs/jimu/toriatsukai_index_tetsu_k_1.html (in Japanese).

  24. 24.

    See preamble 165-170 of Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information (“Adequacy Decision”).

  25. 25.

    https://www.customs.go.jp/english/procedures/advance4_e/index_e.htm.

  26. 26.

    http://www.immi-moj.go.jp/seisaku/pdf/2019_kihonkeikaku_english.pdf.

  27. 27.

    A Passenger Information Unit (PIU) for ISA.

  28. 28.

    Ministry of Justice ‘Basic Plan for Immigration Control and Residency Management (April 2019). http://www.immi-moj.go.jp/seisaku/pdf/2019_kihonkeikaku_english.pdf.

  29. 29.

    Minutes of the 16th meeting of ‘The seventh Immigration Policy Discussion Panel’ and its material no. 3 ‘immigration control’(19 September 2019) (in Japanese).

  30. 30.

    fn. 27.

  31. 31.

    “Review and Outlook of Security (2019)”, Security Bureau, National Police Agency (in Japanese).

  32. 32.

    fn. 27.

  33. 33.

    Working arrangement on establishing cooperative relations between the National Police Agency of Japan and the European Union Agency for Law Enforcement Cooperation signed on 03 December 2018.

  34. 34.

    From EU to Japan, See EDPS Opinion fn. 7 paras 22–23

  35. 35.

    See　II. (b) (2) Limitations flowing from APPIHAO of Appendix 2 to Adequacy Decision

  36. 36.

    See Subsect. 4.4 below.

  37. 37.

    See Opinion 1/15 fn. 1 paras. 221-225, fn. 1.

  38. 38.

    Tele2 Sverige and Watson and Others, C-203/15 and C-698/15, EU:C:2016:970, (21 December 2016) para. 121.

  39. 39.

    Directive (EU) 2016/680.

  40. 40.

    fn. 26.

  41. 41.

    See Adequacy Decision preamples1412013143.

  42. 42.

    See Zarsky fn. 12.

  43. 43.

    See fn. 14. “The ATS 15-year retention period is based on CBP’s historical encounters with suspected terrorists and other criminals, as well as the broader expertise of the law enforcement and intelligence communities. It is well known, for example, that potential terrorists may make multiple visits to the United States in advance of performing an attack. It is over the course of time and multiple visits that a potential risk becomes clear.”

  44. 44.

    US supervision over PNR has a similar structure that spans multiple agencies. The shortcoming of that structure is criticized by Article 29 working party in its letter of 11 April 2018.

Author information

Authors and Affiliations

  1. Meiji University, Kanda-Surugadai, Chiyoda-ku, Tokyo, 101-8301, Japan

    Toru Maruhashi

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  1. Toru Maruhashi
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Correspondence to Toru Maruhashi .

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Editors and Affiliations

  1. University of Salford, Salford, UK

    David Kreps

  2. Chuo University, Tokyo, Japan

    Taro Komukai

  3. Anna University, Chennai, India

    T. V. Gopal

  4. Chuo University, Tokyo, Japan

    Kaori Ishii

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Maruhashi, T. (2020). Japan-EU Passenger Name Record Negotiations and Their Implications. In: Kreps, D., Komukai, T., Gopal, T.V., Ishii, K. (eds) Human-Centric Computing in a Data-Driven Society. HCC 2020. IFIP Advances in Information and Communication Technology, vol 590. Springer, Cham. https://doi.org/10.1007/978-3-030-62803-1_9

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  • DOI: https://doi.org/10.1007/978-3-030-62803-1_9

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