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Cablegate: Pnr Agreement: Delivery of Proposal Via

VZCZCXYZ0005
OO RUEHWEB

DE RUEHC #3521 3571817
ZNR UUUUU ZZH
O R 221809Z DEC 08
FM SECSTATE WASHDC
TO RUEHSW/AMEMBASSY BERN IMMEDIATE 0000
INFO RHEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RULSDMK/TRANSPORTATION DEPT WASHINGTON DC 0000

UNCLAS STATE 133521

SIPDIS
DHS FOR MIKE SCARDAVILLE

E.O. 12958: N/A
TAGS: EAIR ASEC SZ
SUBJECT: PNR AGREEMENT: DELIVERY OF PROPOSAL VIA
DIPLOMATIC NOTE

1. This message contains an action request. See paragraph 2.

2. Embassy is requested to deliver on a priority basis the
text at paragraph 4 in the form of a diplomatic note to
Federal Department of Foreign Affairs of the Swiss
Confederation (DFA). The proposal conveyed in the note, on
the transfer of passenger name record data from air carriers
operating flights between Switzerland and the United States,
anticipates a Swiss diplomatic note in response, which, if
affirmative, constitutes an agreed understanding. Embassy is
requested to report the delivery of the U.S. note and, when
it arrives, the Swiss note in response.

3. Upon receipt of a Swiss reply note, Embassy is asked to
pouch a certified copy of the Embassy's note and the original
of the FDA's reply note to the Department's Office of Treaty
Affairs (L/T - Room 5420, HST), to the attention of Jennifer
Gergen.

4. Begin text:

The Embassy of the United States of America presents its
compliments to the Federal Department of Foreign Affairs of
the Swiss Confederation and, with reference to discussions
between the Government of the United States of America (U.S.
Government) and the Government of the Swiss Confederation
(the Swiss Government) on the transfer of Passenger Name
Record (PNR) data derived from flights between Switzerland
and the United States, has the honor to propose the following:

On behalf of the U.S. government, the Embassy is pleased to
inform the Swiss government that such PNR data are subject to
the privacy protections for PNR data as set out in the System
of Records Notice (SORN) for the Automated Targeting System
(ATS) issued by the U.S Department of Homeland Security
(DHS), U.S. Customs and Border Protection. A System of
Records is a group of any records, under the control of any
U.S. government agency, from which information is retrieved
by the name of the individual or by some identifying number,
symbol, or other identifier assigned to the individual. Under
U.S. law, each such agency must publish notice of its Systems
of Records in the Federal Register. The SORN for ATS was
published in the United States Federal Register of August 6,
2007, (Volume 72, Number 150) (Pages 43650-43656).

PNR data derived from flights between Switzerland and the
United States are governed by the rules regarding Passenger
Name Record data that are set out in the SORN for
ATS-Passenger (ATS-P), one of the six modules within ATS. The
SORN covers the procedures for collecting, analyzing,
storing, and providing access to such PNR information and
redress as it applies to all passengers. This portion of the
SORN addresses: the purpose of processing PNR; the routine
uses of the system, including instances in which PNR data may
be shared with other agencies or governments; the data
elements that comprise PNR; the individuals covered by the
system; the risk-based targeting of travelers based on PNR
data; the application of the administrative safeguards of the
U.S. Privacy Act to records of individuals other than U.S.
citizens or legal permanent residents that are contained in
mixed systems; the length of retention and disposal of the
PNR data; and an individual's opportunity for access to his
or her PNR data and opportunities for redress.

The ATS SORN requires the U.S. government to confer upon PNR
data derived from flights between the United States and
Switzerland, and provided to the U.S. government pursuant to
U.S. law, substantially the same privacy protections as those
addressed in the Agreement between the United States of
America and the European Union on the Processing and Transfer
of Passenger Name Record (PNR) Data by Air Carriers to the
United States Department of Homeland Security, signed at
Washington and Brussels on July 23 and July 26, 2007 (the
2007 Agreement). The U.S. government assures the Government
of Switzerland that it treats such PNR data derived from
flights between the United States and Switzerland no
differently than the treatment accorded to PNR data subject
to the 2007 Agreement.

In light of the foregoing:

1. The U.S. government shall inform the Swiss government
about any amendments to the ATS SORN that may affect the
treatment of, and privacy protections applicable to, PNR data
contained in ATS-P, or any amendments or successor agreements
to the 2007 Agreement. If the Swiss government regards any
such notification as incompatible with the Swiss Federal Act
on Data Protection, there shall be consultations within sixty
(60) days, as described in point 6 below.

2. With regard to the collection of such PNR data, DHS
continues to prefer the transmission of PNR data by Swiss air
carriers through a push system. Such a system should
continue to be deployed, consistent with technical
requirements issued by DHS. The transition to a push system,
however, does not confer on airlines any discretion to decide
when, how, or what data to push.

3. The U.S. government appreciates the ongoing support of the
Government of Switzerland for this and other
counter-terrorism measures. To support this endeavor, the
U.S. government and the Swiss government shall periodically
review the implementation of this agreed understanding and
U.S. and Swiss PNR policies and practices for the purpose of
contributing to the effective operation and privacy
protection of our practices for processing PNR. The U.S.
government shall seek reciprocally information about Swiss
PNR systems as part of this periodic review, and
representatives of the Swiss government maintaining PNR
systems shall be invited to participate in the discussions.
The head of the Swiss Federal Department of the Environment,
Transport, Energy and Communications (DETEC) and the U.S.
Secretary of Homeland Security, or other mutually acceptable
officials, shall together determine the scope and modalities
of the review.

4. The Swiss government confirms that the treatment to be
provided by the U.S. government to PNR relating to flights
between Switzerland and the United States in accordance with
the information provided in this Note satisfies the
requirements of the Swiss Federal Act on Data Protection
regarding transfers to a foreign country.

5. The Swiss government shall continue to allow air carriers
operating passenger flights between Switzerland and the
United States to make PNR data available to the U.S.
government in accordance with United States law and in
application of this agreed understanding.

6. The two Governments shall endeavor to resolve by mutual
agreement any difficulties or doubts arising as to the
interpretation or application of this agreed understanding.

The Embassy further proposes, on behalf of the U.S.
government, that, should this proposal be acceptable to the
Swiss government, this Note and the Ministry,s favorable
Note in reply shall constitute an agreed understanding
between the two Governments that shall take effect on the
date of the Ministry,s Note and shall remain effective
unless terminated by either Government with two (2) months,
advance written notice to the other.

The Embassy of the United States of America avails itself of
this opportunity to renew to the Federal Department of
Foreign Affairs of the Swiss Confederation the assurances of
its highest consideration.


In pursuance of a timely conclusion of the proposed
understanding, the Embassy has the honor to propose the
following text in reply.


(Courtoisie) and has the honor to acknowledge receipt of
Embassy Note No. dated December , 2008, which reads as
follows:

(Insert text of U.S. note)

The Ministry of Foreign Affairs of Switzerland has the honor
to confirm that the proposal set forth in the Embassy,s Note
is acceptable to the Government of the Swiss Confederation,
and that the Embassy,s Note, together with this Note in
response, shall constitute an agreed understanding between
the two Governments that shall take effect on the date of
this Note and shall remain in effect unless terminated by
either Government with two months, advance written notice to
the other.

(Courtoisie)
RICE

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