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12 October 2023

Thoughts on ICAO’s role in data protection

By Conrad Clifford, IATA Deputy Director-General and Corporate Secretary

At the end of September I attended the first ever global seminar on data protection and international carriage by air, which we held in Montreal in cooperation with the International Civil Aviation Organization (ICAO).

It’s appropriate to work closely with ICAO on this issue since a key tenet of ICAO’s purpose - as set out in the Chicago Convention of 1944 – is that “International civil aviation may be developed in a safe and orderly manner.”  It is clear therefore that the safe and orderly control of data is a key part of both ICAO and IATA’s role.

Air transport connects the world and airlines need to process and transfer personal data to facilitate the physical transport of passengers between jurisdictions. The protection of personal data and the right to privacy are fundamentally important. Airlines respect and comply with national data protection and transfer rules set by almost 140 countries, but the cumulative implementation and compliance with national data protection laws has become so complex that airlines often cannot achieve the goals that these laws pursue. And this patchwork of different national laws also has significant implications for States and for consumers.

IATA believes that there are serious issues relating to how national data protection laws interact with international civil aviation, that if left unresolved could compromise the ‘safe and orderly’ development of the industry as envisaged by the authors of the Chicago Convention all those years ago. It’s also worth noting that ICAO Assembly Resolutions already urge States to ensure that domestic policies and legislation are not applied to international air transport without taking account of its special characteristics and enshrined in Bilateral Air Services Agreements.

Today, ICAO’s work on data protection relates mainly to grappling with some of the operational and facilitation impacts of data transfers as they relate to Passenger Name Records or PNR. While civil aviation authorities are not responsible for data protection laws and regulations, they are the ones that often must deal with the impacts that result. IATA believes that it is time for ICAO to look at the topic holistically and we stand ready to support that process.

The agenda of the event reflected the key challenges we face in dealing with data protection. We heard not only from airline experts, but also from the OECD on the initiatives underway to address some of the complex data protections issues at international level. We looked at how aviation can work more collaboratively with data protection agencies. And we got the perspective from ICAO’s Legal and External Affairs Bureau, the Council, and the Chair of the ICAO Legal Committee.

What was clear was that we don’t have all the answers yet. But, in bringing together national data protection agencies, civil aviation authorities, airlines, privacy experts and international organizations to discuss the issues and to try to chart a way forward, we succeeded in improving understanding of the special characteristics of international civil aviation. We’ve set about creating a win-win scenario, enabling governments to deliver on their regulatory objectives without unintended consequences, that truly enhances protection of personal data and privacy for individuals, while providing greater certainty for airlines.

Before the seminar there was some doubt amongst states that this is an issue that needs to be prioritised. After the seminar it appears to have been accepted that this is a priority issue for ICAO. Following the seminar we are producing a detailed paper for further consideration by ICAO including a possible work plan. We hope this will help ICAO to incorporate the issues into their review and standards processes, and we are committed to provide further assistance as needed.

This was the first time we had organized this type of seminar event to unlock and unpack a complex and little understood topic. We were delighted to have the President and the Secretary General of ICAO to open and close the seminar, and the attendance of members of the council and state representatives. Holding the Seminar just across the road from the ICAO HQ made it very accessible to all and I think this is a model that we may use to address other issues in the future.

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