EU-US Agreement on Terrorist Finance Tracking Programme (SWIFT Agreement): Motions

As we have a quorum, we will commence the meeting. Apologies have been received from Deputy Treacy and Senator Bacik. The purpose of today's meeting is to consider a motion relating to the agreement between the European Union and the United States of America on the processing and transfer of financial messaging data from the EU to the US for the purposes of the terrorist finance tracking programme. A briefing note on the matter has been circulated to members. I welcome the Minister, Deputy Dermot Ahern, and his officials. We will receive a briefing from the Minister, to be followed by a question and answer session on the motion.

As part of its overall response to the terrorist attacks of 11 September 2001, the US Government established a terrorist finance tracking programme, TFTP, in the US Treasury Department. The programme uses messaging data from international financial transactions to identify and track funds that may be used to commit terrorist acts or support terrorist organisations. Terrorist groups have grown more sophisticated in their operations, for example, by altering their modus operandi to try to evade detection by intelligence and law enforcement authorities. They are approaching the financing of their operations with the same caution. Specifically, they are employing complex financial transfers to hide their activities. The TFTP has been judged to be an effective support to counter-terrorist investigations. It helps to track and disrupt the sources of funding to terrorist organisations.

The company that handles the vast majority of international inter-bank payment messaging services, SWIFT, holds its European payment messaging data only in the EU. This data was previously also held in the US and was available to the US authorities through subpoenas. An agreement was required to ensure the data could continue to be provided to the TFTP. The agreement, which is the subject of the motion before the committee, sets out the circumstances in which such data can be provided and the procedures for doing so. An interim agreement was established and adopted by the European Council in November 2009. Under the new Lisbon treaty arrangements, however, the European Parliament declined to consent to its terms and it could not be implemented. Ireland had opted in to the proposal in advance of its adoption at Council level. Indeed, this committee considered the proposal at the time and agreed to it. Following subsequent negotiations between the EU and the US, a revised agreement was concluded in June 2010. It was approved by the European Parliament and adopted by the Council in July 2010 and entered into force on 1 August 2010.

In the short timeframe in which this revised agreement was established, it was not possible for Ireland to seek to opt in to the measure under the procedure in the Lisbon treaty before its adoption. Given our ongoing support for measures to combat terrorism and our previously expressed support for the substance of the agreement, which remains largely unchanged, I considered it important to give a clear indication of Ireland's support at the time of the adoption of the agreement. I also indicated my intention to seek the approval of the Oireachtas to participate in the agreement, as provided for under Article 4 of Protocol 21 to the treaties. This article provides that at any time after the adoption by the Council of a measure in the area of freedom, security and justice, Ireland may notify its intention to the Council and to the Commission that it wishes to accept the measure. In accordance with Article 29.4.7° of the Constitution, the prior approval of the Oireachtas is required for the exercise of that option.

The scope of application of the agreement is unchanged. It is limited explicitly to the purpose of the prevention, investigation, detection or prosecution of terrorism or terrorist financing. This is set out clearly in Articles 1 and 2. The revised agreement provides that requests for data may be made by the US Treasury Department directly to SWIFT, but will be copied to Europol. The function of Europol will be to ensure the requests made are in strict accordance with the terms set out in Article 4. In other words, the request must identify the data required clearly and specifically, must substantiate the need for the data and must be as focused as possible. The new arrangement involving Europol is an ongoing, real-time, oversight mechanism. It will help to ensure the appropriate functioning of the agreement and the protection of EU interests.

The terms of the agreement apply only to international financial transactions. Payments made in the single euro payment area are not covered under the agreement as they are not considered to be international financial transactions. The agreement provides only for the targeted provision of data to the US authorities and only for TFTP purposes. The agreement excludes the use of the data for data mining and automated profiling. In general, data will be retained for up to five years, as was the case with the previous agreement. However, the revised agreement makes provision for an ongoing evaluation of the retention period with a view to reducing it where possible. Data which is used in investigations and prosecutions must be deleted when it is no longer necessary for the purpose for which it was provided. The new agreement also covers reciprocal provision by the US authorities to EU member states, and to Europol where appropriate, of information that may contribute to the prevention, investigation, detection or prosecution of terrorism or terrorist financing in the EU. It provides for the relevant EU authorities to request searches of the TFTP.

As the revised agreement concerns the transfer of data, specific safeguards relating to the processing of data, data security and restrictions on the transmission, sharing, use and storage of data are set out to ensure data protection and privacy rights are respected. Provisions relating to rights of access and redress in this regard are also included. The revised agreement provides for ongoing monitoring and oversight of its safeguards by independent overseers appointed by both parties. The overseers have the authority in real time to block searches they consider to be in breach of the safeguards set out in Article 5. This ongoing oversight is in addition to the oversight provided by Europol's involvement in the transmission of requests. Provision is also made for a regular joint review by the EU and US authorities of the safeguards, controls and reciprocity provisions set out in the revised agreement. Furthermore, the revised agreement provides for a review, no later than three years after the entry into force of the agreement, of the value of the data provided to the TFTP.

This measure is a targeted and proportionate tool in the overall international effort to counteract terrorism. The revised agreement that is in place contains appropriate data security and privacy safeguards and sets out a transparent and effective means of supporting the continued operation of an important tool to help combat terrorism. The fight against terrorism is a key ongoing priority for the EU and the international community. Ireland supports the many actions being taken in this regard. We simply cannot afford to be complacent in facing down the threat from those forces that wish to undermine democracy and the rule of law. Identifying the money trail can be an essential part of investigating and prosecuting terrorism. This has been highlighted by the recent discovery of bombs hidden on cargo planes destined for the US. It is essential to work at cutting off or restricting the supply of funds to terrorists such that the capacity to act can be weakened and, hopefully, eliminated. By opting for this agreement, Ireland along with its EU partners, will contribute to that goal.

Do Members wish to make any comment or ask questions?

The Labour Party supports the measure. Will the Minister indicate if there is evidence of serious issues in terms of terrorist financing in Ireland? What level of activity has come to the notice of the Department?

In relative terms, it would be considered to be very low. International transactions involving Irish terrorists would be possible under the agreement but there are dealings with the US and it would encompass them. The experience has been that there is a low level of involvement in that respect.

I thank the Minister. Are the motions agreed? Agreed. I thank the Minister and his officials for their attendance at the meeting.