Opinion

Has the LIBE Committee Torpedoed the Safe Harbor?

The committee of the European Parliament charged with shepherding the proposed EU Data Protection Regulation—the LIBE Committee—finally has reported out an amended version of the Regulation. And despite the fact that a Commission-initiated review of the EU-U.S. Safe Harbor is pending, it appears the LIBE Committee effectively has called for the end of the Safe Harbor.

That is because in Article 43a of the proposed amended Regulation, the so-called “anti-FISA clause,” companies in the United States are forbidden from complying with governmental requests for personal data (such as FISA requests initiated by the NSA) unless expressly approved by EU data protection authorities or pursuant to agreements allowing such transfers. While the EU-U.S. Safe Harbor has a national security exception now, it is clear EU officials do not believe data may be transferred to the U.S. from the EU, under the Safe Harbor or otherwise, if the data is vulnerable to disclosure to U.S. governmental requests without EU approval.

This is how Rapporteur Jan Albrecht has put it:

Whistleblower Edward Snowden and the Prism scandal laid the ground for the report's demand: companies like Google are not allowed to transfer data to third countries’ authorities. This can only occur under European law or an agreement based on European law. Without any concrete agreement there would be no data processing by telecommunication and Internet companies allowed. This was part of a first draft of the Commission's proposal but deleted after intensive lobbying of the American government. It is back in the draft Parliament report.

Thus there is every indication that the Safe Harbor national security exception for data transfers to the US will not remain in its current form, if at all. As I told the publication Inside US Trade, the exact scope of what would fall under the anti-FISA clause is still murky and not entirely clear. It would be helpful for the Rapporteur and the committee to explain what the scope of this provision actually is.

Obviously, U.S.-based companies presented with a valid legal order from the U.S. government cannot tell the feds they have to wait for access to EU citizens’ data until European authorities say it is OK. And since no EU-U.S. agreement is likely that restricts U.S. governmental access in ways that go beyond the U.S. legal strictures, the proposed amendment effectively ends transfers under the EU-U.S. Safe Harbor.

Thus, even though the percentage of EU citizen data accessed by U.S. government officials is low in comparison to the volume of the commercial cross-border flow of data, and even though the Safe Harbor provides a level of U.S.-based regulation and enforcement not possible under other EU-U.S. cross-border transfer mechanisms, policymakers in the EU seem determined to torpedo the Safe Harbor.

As FTC Commissioner Julie Brill put it so well this September in a Brussels speech, jettisoning the Safe Harbor also means sinking an important set of cops on the beat to enforce privacy protection for EU data subjects—the privacy and enforcement folks at the Federal Trade Commission (FTC).

The Safe Harbor gives the FTC the ability to enforce the framework under Section 5 of the FTC Act – and to date, the Commission has used its authority to bring 10 cases challenging the Safe Harbor claims made by a variety of companies. If the Safe Harbor disappears, EU consumers lose the invaluable help of the FTC in overseeing what happens to their data when dealing with U.S. companies. And if companies are restricted to alternative transfer mechanisms such as model contracts or binding corporate rules, EU regulators and consumers lose the benefit of the transparency and FTC oversight that the Safe Harbor currently offers.

Moreover, eliminating the Safe Harbor will do nothing to address the national security surveillance that set the Safe Harbor debate in motion. According to Vice-President Reding, “national security is a huge loophole and we need to close it. But we can’t close it with this regulation.” The Safe Harbor, meanwhile, is a treaty that governs the transfer of commercial data to the U.S. and does not govern its use for national security purposes.

Before abandoning the Safe Harbor, we urge the European Parliament and Council to take a deep breath, and to take a dispassionate view of the effectiveness of the Safe Harbor—especially in comparison to the enforcement tools that are or would be available if the Safe Harbor is blown up.

The Future of Privacy Forum (FPF), the leading think tank focused on advancing privacy in business practical ways that I co-chair, is engaged in a review of the Safe Harbor, which will culminate with a public report on the Safe Harbor and its role in protecting personal privacy and promoting global interoperability.  

We think that a fact-based review is necessary in light of the negative statements made by the EU even before the official review began and especially in light of the recent Parliamentary committee actions.

Our review is looking at  (a) current protections offered by the Safe Harbor; (b) the effectiveness of the independent enforcement Safe Harbor programs; and (c) enforcement efforts by both the U.S. and EU. We feel strongly that another look at the Safe Harbor, in addition to the one the EU is conducting, is essential to an understanding of whether personal privacy is being protected adequately.

Where there are gaps and areas for improvement, we plan to report on those and call for improvements  But let’s take a close look at the facts and understand the protections are provided to EU consumers and the rights they will lose if Safe Harbor goes away before rushing to hasty judgment .

photo credit: MATEUS_27:24&25 via photopin cc

Note from the Editor:

Editor's Note: Chris is writing this post under the capacity as Founder and Co-Chair of the Future of Privacy Forum.

More from Christopher Wolf

About the Author

Christopher Wolf leads the global privacy practice at Hogan Lovells US LLP and has practiced privacy law since the earliest days of the discipline. Wolf also is the founder and chair of the Future of Privacy Forum. He was the editor and lead author of the first PLI treatise on privacy law and is a frequent author and speaker on privacy and data security issues. Wolf was the first privacy lawyer to testify before the Senate Judiciary Privacy Subcommittee and is a member of a group advising the OECD on the OECD privacy guidelines.

Wolf is a cum laude graduate of Bowdoin College and graduated magna cum laude Order of the Coif from the Washington & Lee University School of Law. He participated in the general course at the London School of Economics. Following law school, he clerked for U.S. District Judge Aubrey E. Robinson Jr. in Washington, DC. He has practiced law for 32 years. Wolf is active in charitable organizations and serves on the boards of the Anti-Defamation League, WETA Public Broadcasting, Food & Friends (a social services agency), the George Washington University Hospital and Young Concert Artists.

See all posts by Christopher Wolf

Comments

  • October 22, 2013
    Damon Greer
    replied:

    To be clear, Safe Harbor is not a treaty.  Perhaps that is how VP Reding characterized it.  It is a bilateral binding legal agreement between the EU and the US; all member states and the EEA countries that have adopted the EU data protection directive are bound to Safe Harbor as are the eligible organizations that certify adherence to the privacy principles and the 15 FAQs that make up the framework.

  • October 25, 2013
    Safe Harbor is a fraud
    replied:

    Many of Chris’s points are valid, but the Safe Harbor framework is a fraud for other reasons.  Three studies have shown that many companies participating in the Safe Harbor do not meet the requirements, and the Department of Commerce has never lifted a finger to do anything about it.  FTC enforcement isn’t enough to scare anyone to comply.  You can read a summary of Safe Harbor problems in reports by the World Privcy Forum.  “Many Failures: A brief history of privacy self-regulation” at http://worldprivacyforum.org/wp-content/uploads/2011/10/WPFselfregulationhistory.pdf and “,The US Department of Commerce and International Privacy Activities: Indifference and Neglect” at http://worldprivacyforum.org/wp-content/uploads/2009/12/USDepartmentofCommerceReportfs.pdf

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