Closing the GATS Gap: Passenger Name Record (PNR) Agreements & the Case for Equalizing Services Export Restrictions

Andrew Elliott*

Rising global terror concerns at the turn of the century brought about a sweeping set of security measures on the international stage. Among them were Passenger Name Record (“PNR”) agreements, which require airlines to share passenger data with destination countries days before a flight takes off. The data comes with strings, however, particularly when it originates in countries with strong privacy protections. The United States was one of the earliest proponents of the PNR system and has entered into a series of agreements with the European Union to secure this data. But in the process, the United States committed to weaker privacy protections than the European Union has, or will, demand of other countries (including Canada). Beyond debates of national security and privacy, these uneven demands may bring PNR agreements into a surprising arena: global trade policy. The World Trade Organization’s General Agreement on Trade in Services (“GATS”) bars preferential treatment between Member States on foreign services and services suppliers through a “Most Favored Nation” requirement common to international trade agreements. GATS, however, is silent on controls over exported services, theoretically allowing a country to impose looser controls on its exports to one country over another (the “gats GAP”). PNR agreements are one such export control; they highlight how GATS can, and should, require a Member State to impose equal commitments on all consumers of their PNR data. Now that the U.S.-EU PNR Agreement has passed its initial seven-year enforcement period, therefore, the European Union should seek amendments that impose privacy commitments on the United States that are just as strong as those imposed on other Member States.

* 2020 Juris Doctor Graduate, Columbia Law School. I am thankful to Professor Petros Mavroidis, Columbia Law School, for his guidance, as well as the staff of the Columbia Journal of Transnational Law, notably Alexandra Bodo.