VZCZCXRO6178
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHFR #0575/01 0441356
ZNR UUUUU ZZH
P 131356Z FEB 07
FM AMEMBASSY PARIS
TO RUEHC/SECSTATE WASHDC PRIORITY 4908
INFO RUCNMEM/EU MEMBER STATES  PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY 1930
RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC

UNCLAS SECTION 01 OF 02 PARIS 000575 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EB/TRA, EUR/WE, S/CT, L 
DHS FOR TSA 
 
E.O. 12958: N/A 
TAGS: EAIR PTER FR
SUBJECT: FRANCE: GOF TO PERMIT AIR FRANCE TO SCREEN 
SELECTEES, DIRECTLY IMPLEMENT OTHER EA'S 
 
¶1. (SBU)  SUMMARY:  Reversing several years of reticence, the 
French Civil Aviation Authority indicated in an e-mail 
January 29 that it was now prepared to allow Air France to 
fully implement TSA Emergency Amendments concerning No-fly, 
Selectees, and the Master-Crew List. This is good news. The 
GOF's legal reasoning on the issue however raises questions 
about whether it intends this to serve as a precedent for 
future EA's, as well as whether its new approach could 
conflict with that taken by the French Data Privacy Authority 
(CNIL). 
 
--------------------------------------------- --- 
GOF NOW ACCEPTS ALL CURRENT EMERGENCY AMENDMENTS 
--------------------------------------------- --- 
 
¶2. (SBU) The e-mail, which came in response to Embassy 
inquiries and was coordinated within the French government 
and was also sent to TSA and Air France, stated "we can 
confirm that there is no French regulatory text that requires 
or forbids airline transportation companies to conform to 
requirements of the American administration before entry into 
its airspace," and recalls that a prior order requiring 
airlines to inform the French Border police of positive 
No-Fly matches was lifted in July of 2006. The message 
affirms that airlines may work directly with the USG on the 
implementation of TSA Emergency Amendments (EAs).  Though Air 
France intends to request formal notification from the 
Government of France, it has indicated that it is satisfied 
it has now authority to proceed with EA implementation, and 
met with TSA February 9 to review outstanding issues, 
including No-Fly notification procedures, Selectee passenger 
screening, and provision of properly formatted Master Crew 
Lists (MCLs). 
 
¶3. (SBU) The GOF communication has the potential therefore to 
resolve several long-standing issues growing from its 
historical reluctance to allow USG agencies to directly apply 
aviation security measures to French carriers operating on 
French territory.  An Embassy-brokered arrangement requiring 
airlines to notify the USG of No-Fly matches via the French 
border police allowed No-Fly screening to proceed in a 
relatively satisfactory manner, but the GOF refused to issue 
instructions to their airlines to perform Selectee EA 
screening despite repeated requests by all levels up to and 
including DHS Secretary Chertoff, who was told in January 
2006 that the GOF would need time to resolve the legal issues 
related to data protection and the role of the CNIL in 
regulating airlines security screening practices before they 
could move ahead with Selectee screening.  We strongly and 
repeatedly argued that such issues could best be resolved in 
the context of France's obligations to ensure aviation 
security and respect for U.S. security requirements under the 
Chicago Convention and our bilateral aviation services 
agreement. 
 
------------------- 
NEW LEGAL REASONING 
------------------- 
 
¶4. (SBU) After substantial interagency consultation on the 
data privacy issue, the GOF decided last summer that contrary 
to its previous arguments that No-Fly screening was a 
security issue requiring a GOF mandate, they now viewed it as 
a business practice issue for airlines seeking to enter US 
airspace.  They informed the airlines in July that they would 
need to apply to the CNIL for approval of their No-Fly data 
processing, if this took place even partially on French 
territory. They informed the Embassy of this decision in a 
note verbale of July 26, and noted in passing that the GOF 
did not challenge the juridical basis of our right to limit 
access to U.S. territory, which they cited as being articles 
11 and 13 of the Chicago Convention.  The repeal of the Civil 
Aviation Authority (DGAC) directive authorizing No-Fly 
screening was directly related to this decision.  In both the 
Embassy's and Air France's view, however this left intact 
both the GOF's opposition to Selectee screening, and the 
arrangements we had previously agreed upon for Air France to 
furnish the MCL via the French Border Police.  The Border 
Police's recent refusal to accept the MCL from Air France and 
the DGAC's e-mail indicates that the GOF has now quietly 
backed away from all of its earlier objections, and is 
willing to accept TSA implementation of all existing EA's. 
This may or may not constitute a precedent for future 
measures. 
 
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PARIS 00000575  002 OF 002 
 
 
OUR VIEW 
-------- 
 
¶5. (SBU) This is on the whole good news.  After a long 
struggle, we have gained GOF acquiescence in the application 
of U.S. aviation security measures in a manner that will be 
more efficient and transparent for all.  It is perhaps not 
surprising that given its prickly sensitivity to all matters 
sovereign, it has been reluctant to provide clear guidance to 
Air France about the full extent of its change of heart, but 
with some prodding from the Embassy, it has now done so.  It 
has taken on board only a part of our argument however, and 
has placed the responsibility for ensuring compliance with 
aviation security requirements on the airlines, rather than 
on itself as a party to international aviation agreements. 
We will need to see if this strengthens or weakens the 
airlines' vulnerability to potential lawsuits from customers, 
which was formerly cited by the GOF as a prime reason for 
needing to ground No-Fly screening more clearly in French law. 
 
-------------- 
THE FINE PRINT 
-------------- 
 
¶6. (SBU) We note that the GOF has been quite prudent in 
formulating the legal basis for its position, and has limited 
its comments to affirming that no French regulation currently 
bars airlines from implementing TSA EAs. To the extent they 
have cited justification in international law, it has been 
the Chicago Convention, rather than our bilateral Air 
Services Agreement.  While we do not believe we are likely to 
get any clearer legal explanations in writing, we wonder 
whether this is to protect a fall-back position in case of 
objections to future US requirements, or because to do so 
would provide a more unambiguous bilateral basis for assent 
to US security requirements.  Could it conceivably have 
something to do with concerns about the stability of Open 
Skies agreements given the ECJ decision? 
 
-------------------------- 
DATA PRIVACY IMPLICATIONS? 
-------------------------- 
 
¶7. (SBU) We would also underline the data privacy 
implications of this view, which is not necessarily shared by 
the CNIL.  The CNIL's view is directly contrary to the GOF, 
in that it presumes that the international legal framework 
for data transfer is insufficient, and that a national 
law--on the basis of the government's responsibility for 
security--is required. In an opinion piece it published on 
its website in June 2006, the CNIL flatly stated that 
transfer of data by European airline companies "is not 
regulated by international agreements.  Transmission of 
passenger data derived from reservation and check-in systems 
requires a decree from the State Council after consultation 
with the CNIL."  We have yet to see which way the CNIL will 
lean on this issue, and we have heard from recent 
conversations with Air France that it believes the upcoming 
introduction of APIS Quick Query (AQQ) would satisfy the 
CNIL's objections.  (Comment.  This is due reportedly to the 
CNIL,s view that data transfer from France is less 
problematic than data manipulation (i.e., list comparisons) 
in France. End Comment.)  In the event of an adverse decision 
however, by not directly assuming responsibility for aviation 
security, the GOF apparently has preemptively placed itself 
in a weaker position from which to deal with the CNIL, and 
with us, to seek an eventual remedy. 
Please visit Paris' Classified Website at: 
http://www.state.sgov.gov/p/eur/paris/index.c fm 
 
WHITE