U.S. can veto flights to Cuba from Spain, Canada and Mexico

By N. Junquera and M. Ceberio Velaza

From the Spanish newspaper El País

Hernando Calvo Ospina, a 51-year-old Colombian journalist who writes for Le Monde Diplomatique and has lived in Paris for the past 25 years, was prevented from flying to Cuba last May 6 from Barajas Airport in Madrid because a U.S. Embassy official barred him from boarding his plane. The flight was direct to Havana, with no stopover in the United States.

As Calvo tells it, the official “asked me for my passport and told me I couldn’t board the plane because the flight route took it over U.S. air space for a few minutes and I was on a list of persons who might attack the United States. I had made the same trip the previous October and nothing happened to me.”

The United States and the European Commission last December signed an accord – approved in April by the European Parliament – that obligates European airlines to turn over to the U.S. Department of Homeland Security data about their passengers, but only regarding flights originating from or arriving in the United States. The accord, known as PNR (Passenger Name Register) would therefore not be applicable in this case.

What’s the problem, then? Since March, U.S. authorities have unilaterally demanded all European airlines, through its Secure Flight Overflight program, to provide the names, birth dates and gender of any passengers in planes that overfly the United States, before the planes take off.

The reason given by the U.S. is security, the possibility that one of the passengers might hijack the plane and change its route. That’s why the people on the list of undesirables cannot fly, even if they won’t step on U.S. soil. The airlines are obligated to enter into their computer systems the information about their passengers (if the airlines refuse, they cannot operate) and Washington blocks the issuance of boarding passes to those who appear on its lists.

When this happens, the airline can only call the U.S. functionaries, who are allowed to operate in Spanish airports by virtue of an accord signed in 2009 by the U.S. and the Spanish Ministry of the Interior. The Americans can interrogate the passenger and decide whether he or she may fly.

In addition, because Washington has had since March the information about travelers to third countries, it can learn, for example, how many times someone has traveled to Havana and with whom.

How many people are affected by this U.S. policy? In Spain, it affects thousands of passengers with three destinations: Cuba, Mexico and Canada. It involves two Spanish airlines (Air Europa and Iberia) and two foreign airlines that operate flights from Spain (Aeroméxico and Air Transat).

When buying tickets to Toronto, Montreal, Mexico City or Havana, the last thing a passenger might imagine is that his personal data will be given to the U.S. Despite that, none of the four airlines informs its passengers properly. Iberia (with several weekly flights to Cuba and Mexico), Air Europa (six or seven weekly flights to Havana) and Aeroméxico don’t do it.

The first two assured EL PAIS that they will begin to do so soon. Air Transat is the only one that warns passengers, but it does so in a small box in its website, not when the passenger buys the ticket.

 “The lack of information implies an evident violation of the law on data protection, and the user could complain,” says Rubén Sánchez of the Spanish consumers association FACUA. “The surrender of data must be communicated. The whole affair is an excess and a disproportionate measure by the United States.”

The Spanish Organization of Consumers and Users (OCU) agrees that the passengers have the right to know that their data will be surrendered to another country.

Last May, the Spanish political coalition United Left (IU, for Izquierda Unida) questioned the Spanish government about this matter. The Executive replied that those actions “are protected” by the accord between the U.S. and the E.U. approved in April. But that accord does not mention the overflight of air space. Its Article 2 states clearly that the accord will apply “to companies that operate passenger flights between the E.U. and the U.S.” and to “companies that incorporate or store data in the E.U. and operate passenger flights originating in or landing in the U.S.”

Luis Doncel, a spokesman for the European Commission, confirms that overflights are not included in the accord,

The Spanish Agency for Data Protection says it is “very concerned” over this situation. “What European regulation does a Spanish company cite to surrender that data? What are the guarantees about the treatment of those data? There is no legal European framework to support this practice,” says a spokesman for the agency’s international section.

The agency has discussed the matter with its counterparts in other European Union countries. “We have transmitted the information to the European Commission,” the spokesman says. “Now it’s them who have to act. It is an atypical situation. Besides, it puts the airlines in an awkward position. They make every effort to comply with the U.S. because if they don’t, they can’t fly, but they can run into a conflict with the laws on data protection.”

EL PAIS asked the European Commission if it’s going to adopt any measures, but the E.U. did not reply.
The airlines themselves seem to have doubts as to when they should communicate the information. Iberia says it provides the information only on its flights to Mexico but not on the Madrid-Havana route because it is not included in the list of affected routes sent to Iberia by the U.S.

Air Europa says the opposite: the Madrid-Havana route is included, yes, so the airline is obligated to surrender the date lest it be hit with heavy fines.

Hernando Calvo was unable to take a flight that he had paid for – 744 euros – so he asked Air Europa to reimburse him that amount. The airline replied that it didn’t hold itself responsible “because it is the obligation of all passenger to carry with them the necessary documentation and place it at the disposal of the authorities.”

Calvo did carry it. His passport was in order and he needed nothing else to fly to Cuba.