Privacy Advisor

Commission Gives U.S. 13 Ways To Save Safe Harbor

November 27, 2013

By Angelique Carson, CIPP/US

The European Commission has released its report on EU-U.S. data flows, including a critique of the widely-criticized Safe Harbor framework, which makes 13 recommendations to improve the data-transfer mechanism. The commission says U.S. authorities have until summer of 2014 to implement the recommendations, at which point it will revisit the review.

The recommendations call for self-certified companies to disclose their privacy policies and any privacy conditions based on relationships with third-party vendors; improved facilitation to redress methods, including links on certified companies’ privacy policies to alternative dispute resolution (ADR) providers; notification to EU authorities when complaints are filed with the U.S. Federal Trade Commission (FTC), and for the national security exception—which allows law enforcement access to data—to be used “only to an extent that is strictly necessary or proportionate.” There is also a call for self-certified companies to include, within their privacy policies, information on “the extent to which U.S. law allows public authorities to collect and process data transferred under the Safe Harbor."

The commission says it will review the framework following the implementation of its recommendations. Federal Trade Commissioner Julie Brill told The Privacy Advisor she is pleased that the commission has indicated its support for Safe Harbor. “The FTC has vigorously enforced the Safe Harbor and will continue to do so. I am reviewing the report, and particularly its recommendations, carefully. I think some of the recommendations—increasing transparency and making ADR easily accessible and affordable—would be helpful. I look forward to continuing the dialogue about these important issues with my European counterparts.”

Dutch MEP Sophie in’ t Veld, vice president of Parliament’s Civil Liberties and Home Affairs Committee, said she’s glad the commission is taking steps, but, “We’ve been calling for an evaluation or even suspension action for many years, so this report is overdue.”

She said the report is a signal that things are starting to shift.

“For so many years, European data protection laws were basically completely ignored, and the member states and the European Commission did little to make sure they were being properly implemented and enforced, so these are the first signs that maybe we’re now finally entering the phase where we no longer tolerate that our own EU rules are being overruled by third countries’ laws. I hope it’s a new era where our laws will finally be enforced on European territory."

She added that, while progress is appreciated, “It’s a pity it’s so late in the day.”

Parliament will be dissolved in about six months with elections in May of 2014, after all.

“It’s a very inconvenient time. If the commission had acted sooner, we would have had more time for proper parliamentary process,” in’ t Veld said.

FTC Chairwoman Edith Ramirez said the FTC “remains committed to vigorous enforcement against those who violate its requirements. To date, we have brought enforcement actions against 10 companies, including Google, Facebook and Myspace, resulting in orders protecting consumers worldwide, millions of them in Europe, and we currently have more nonpublic investigations underway.”

She added that the FTC looks forward to working with its European colleagues “on improved enforcement cooperation and awareness concerning Safe Harbor."

Henriette Tielemans of Covington & Burling in Brussels told the Advisor she thinks U.S. companies certified under Safe Harbor will be relieved it has not been revoked, which was a “distinct possibility.”

While it seems changes are imminent, the report indicates “a genuine willingness on the part of the commission to save the mechanism,” she said. The release today also includes a strategy paper on transatlantic data flows and reviews on the Terrorist Finance Tracking Programme and the Passenger Name Records agreement.

A spokesperson from the U.S. Department of Commerce, which negotiated Safe Harbor with the European Commission and has an active working relationship, told The Privacy Advisor that “the U.S. has always maintained a constructive dialogue with the EU on the operational aspects of the Safe Harbor framework,” adding the “U.S. looks forward to further discussions with the EU on the framework in the coming months.”

Editor's Note: Field Fisher Waterhouse Partner Eduardo Ustaran, CIPP/E, expressed his take on the commission's report in a post for Privacy Perspectives.

Read More by Angelique Carson:
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Downstream of the Data Breach: Identity Theft Is A Messy Crime

Safe Harbor’s In Trouble—Unless You Ask the U.S.
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