US embassy cable - 05PARIS8390

UNCLAS SECTION 01 OF 02 PARIS 008390 
 
SIPDIS 
 
SENSITIVE 
 
FOR EUR/WE--SBALL, EB/TRA--BMATTINGLY, S/CT--SKONTOS 
DHS FOR TSA 
 
E.O. 12958: N/A 
TAGS: EAIR, FR, PTER 
SUBJECT: FRANCE: GOVERNMENT CONCERNED ABOUT LEGAL BASIS FOR 
NO-FLY/SELECTEE SYSTEM 
 
REF: PARIS 08311 
 
1. (SBU) SUMMARY: In a December 7 meeting with a French 
official, Emboffs reviewed current arrangements for 
implementing the No-Fly system in France, and discussed GOF 
concerns about its legal basis in U.S. domestic law and ICAO 
conventions.  Our contact also raised the potential 
applicability of French data privacy law to No-Fly screening, 
and downplayed the likelihood of quick implementation of the 
Selectee Emergency Amendment (EA).  Post requests guidance on 
how to respond to legal issues raised by the GOF.  END SUMMARY 
 
2.  (SBU) Econoff and TSA representative (TSAR) met December 
7 with Col. Pierre Edery, who recently replaced Col. Henri 
Schlienger as responsible for aviation security at the 
Secretariat Generale de la Defense Nationale (SGDN), the 
 
SIPDIS 
Prime Minister's coordinating office for anti-terrorism.  He 
provided a read-out of the report delivered after the recent 
visit of a delegation from the Direction Generale de 
L'Aviation Civile (DGAC) to Washington, that had been 
requested by the GOF to better understand the operation of 
the U.S. No Fly and Selectee Emergency Amendments (EA)s and 
their implementation.  We were able to provide a number of 
additions and corrections to information contained in the 
report, including the size of the No-Fly list, the different 
criteria for inclusion on the No-Fly or Selectee lists, and 
the different methods for transmitting APIS data to the USG. 
 
 
3.  (SBU)  We also reviewed the specific arrangements the USG 
has established with the GOF for compliance with the No-Fly 
EA, pointing out that multiple notifications when we detect 
NF matches based on APIS data were particularly cumbersome to 
manage.  Col. Edery appeared open to a greater role for the 
DGAC in "crisis management" of time-sensitive issues such as 
individual No-Fly cases. Issues involving larger numbers of 
flights or broader national interests were clearly in SGDN's 
purview (e.g. designation of "flights of interest" or 
discussions regarding the basic conditions for applying EA's 
or other issues requiring inter-ministerial coordination 
within the GOF). 
 
4. (SBU) Edery also provided new insight into the basis for 
SGDN's concerns that application of U.S. EA's by French 
airlines in France stands on a shaky legal basis, noting that 
the GOF wished to make sure this would not be open to 
challenge in French courts.  The DGAC's report raised a 
number of questions about the grounds for applying EA's to 
foreign airlines in the U.S., and for airlines to deny 
boarding to passengers on the No-Fly list.  TSAR provided an 
explanation of the security components of U.S. licensing 
procedures for foreign carriers, as well as an explanation of 
the conditions of carriage which passengers agreed to upon 
purchase of a ticket. 
 
5. (SBU) The report also apparently questioned whether 
article 13 of the ICAO convention provided adequate legal 
justification for the No-Fly system.  While disclaiming any 
special juridical expertise, we suggested that he consider 
both article 13 and annex 17 as grounds supporting the No-Fly 
system.  It was clear however that questions raised in the 
report were of considerable complexity: e.g. "can the 
exclusion of a flight because of the presence of a passenger 
on a watch-list not based on criteria admissible in normal 
jurisprudence be considered a "law" or "regulation" of a 
contracting state?"  Edery said SGDN was on the verge of 
requesting that the MFA study the issue and provide them with 
an opinion.  We agreed to meet again with Edery and SGDN 
legal staff next week to review issues and listen to their 
concerns in more detail. 
 
6. (SBU) The DGAC report also raised the question (apparently 
shared by the Interior Ministry, the Transportation Ministry 
and Air France) as to whether the No-Fly list constituted an 
"interconnected database" (a new database constituted by 
merging two separate sets of information) that would require 
authorization by the National Commission for Data Privacy 
(CNIL) under the terms of a French law of January 6, 1978. 
If this were the case, it could mean that provisions of the 
law such as notification of those included and seeking their 
consent before providing data to third parties would be 
applicable--not the optimum situation for anti-terrorist 
operations, as Col. Edery observed. 
 
7. (SBU) The CNIL has expressed considerable reservations 
about the provisions in the anti-terrorism legislation 
currently under consideration that would provide the GOF with 
authority to collect APIS and PNR data on passengers arriving 
from or departing to countries outside of the EU (reftel). 
Edery told us SGDN sought to include explicit mandate for 
No-Fly and Selectee screening in the draft legislation, but 
had removed it due to opposition from the CNIL.  They were 
now considering three possible means of providing legal 
grounding for No-Fly screening: CNIL authorization according 
to the 1978 law, specific legislation authorizing No-Fly 
screening, or a bi-lateral or multi-lateral agreement with 
the U.S. on aviation security.  Prodded on the broad latitude 
that pending legislation would appear to give to GOF to 
screen passengers, he did not seem convinced that it would 
provide a sufficiently secure basis to protect No-fly 
cooperation with the U.S. from possible legal challenge. 
 
8. (SBU) Finally, Col. Edery frankly admitted that while 
continuing French cooperation on No-Fly was not in doubt, 
current guidance from the Prime Minister's Office on the 
Selectee EA was not to move ahead at this time, while the GOF 
is involved in sensitive efforts to secure passage of the new 
anti-terrorism law. 
 
9. (SBU) Comment: The pragmatic and frank tone of this 
conversation is encouraging, and we will seek to profit from 
this new attitude to make operational improvements in our 
No-fly arrangements with the French.  Though GOF concerns 
about the applicability of their data privacy legislation to 
the No-Fly system appear to be sincere, they have so far not 
impeded its implementation here.  After the expected adoption 
of the new anti-terrorism law in January, we should be 
prepared to renew our push for application of the Selectee 
EA.  End comment. 
 
10. (SBU) Action Request: Post requests guidance and 
additional information on the legal foundation of No-fly 
screening in domestic American law and the ICAO conventions 
to use in responding to GOF questions and concerns. 
Please visit Paris' Classified Website at: 
http://www.state.sgov.gov/p/eur/paris/index.c fm 
 
Stapleton