Relax Schrems, EU-US Safe Harbour ruling coming soon

Meanwhile, US says Europe's top legal adviser is totally wrong on US surveillance

Next Tuesday, Europe’s top court will decide whether the much-discussed and sometimes controversial EU-US data sharing deal provides enough privacy protection for citizens.

Less than two weeks after the opinion of the European Court of Justice's Advocate General (AG), Yves Bot, became public, the body will rule on the Max Schrems case, which hinges on the implementation of the so-called Safe Harbour agreement.

The speed of the decision is rumoured to be because one of the senior judges is set to retire.

In his opinion last week, Bot was critical of the 16-year-old agreement, set up to allow personal data from the EU to be transferred to the US, even though the US does not meet EU data protection adequacy levels.

In reaction to Bot’s opinion, the US Mission to the EU in Brussels on Monday said the framework “has been critically important to the protection of individual privacy and the conduct of commerce on both sides of the Atlantic; it has served, and continues to serve, as a model around the world for the protection of individual privacy and flow of data across national borders".

This is a position markedly in contrast to that of the European Parliament, which has called for the framework’s suspension.

Following the Snowden revelations about the extent of US's National Security Agency surveillance, MEPs demanded that the EU executive, the European Commission, annul the deal.

Since then the Commish has been in talks with the US to overhaul the agreement, but has stopped short of completely cancelling it.

In Bot's opinion, that the fact the deal is up for renegotiation means that the Commission knows it is not fit for purpose in its current form. The US mission disputes this, claiming the framework is “a living document”.

Angry Austrian Schrems claims that Facebook handed over his private data, despite being signed up to the agreement. When the Irish data protection commissioner refused to act, he took his case to the Irish High Court, where it was referred on to the ECJ.

In its statement, the US mission refutes many of Bot’s comments. “The Advocate General’s opinion rests on numerous inaccurate assertions about intelligence practices of the US,” it said.

“The opinion notes that it was required to accept the facts as found by the Irish High Court," it continued. "There was, however, no actual fact-finding in this case; instead, the Irish High Court concluded, on the basis of exhibits to plaintiff’s affidavits, that the accuracy of his allegations regarding US intelligence practices 'is not in dispute'. But that is simply not the case."

“The US does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens. The PRISM program that the AG’s opinion discusses is in fact targeted against particular valid foreign intelligence targets," said the mission.

"Moreover, the opinion fails to take into account that (particularly in the last two years) President Obama has taken unprecedented steps to enhance transparency and public accountability regarding US intelligence practices," it added.

“Given the important privacy and trade benefits that Safe Harbor provides to EU and US citizens and businesses, we hope that the final judgment of the ECJ takes note of these efforts, inaccuracies in, and far-reaching consequences of, the AG’s opinion, as well as the significant harm to the protection of individual rights and the free flow of information that would occur if it were to follow the opinion," it concluded.

Mike Weston, CEO of data science consultancy Profusion, agreed that the recommendation is “potentially a major blow to US tech companies”.

“If the agreement becomes invalid, businesses such as Google and Facebook will need to significantly restructure how they manage and use data. The cost implications could be huge, with many of them having to extensively expand their data centre capacity throughout Europe,” he said. ®

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