Original URL: http://www.theregister.co.uk/2012/02/01/data_protection_eu_law_overhaul/

Reading Reding: Pouring water on DP draft bill

Just how workable is the Euro commissioner's proposal?

By Kelly Fiveash

Posted in Law, 1st February 2012 11:00 GMT

It's been a busy few days for the future of data protection at a European level. However, the celebrations and commiserations are well and truly over for policy wonks, internet businesses and watchdogs who have all been eagerly poring over the Justice Commissioner's freshly-tabled draft Data Protection (DP) bill. Now the real work begins.

Late last week, I was one among hundreds of attendees at the Computers, Privacy & Data Protection conference – an event that is fast becoming an essential annual meeting point for anyone wanting to dissect the latest online privacy issues.

The Brussels' shindig for DP geeks has actually been going for a good few years now, but this one – cast at the same time as Reding putting forward her draft data protection bill – was arguably the most important yet. If nothing else, it certainly served as an immediate post-mortem.

That's because the commissioner's proposals are still being digested by the various national data protection authorities throughout Europe. Some are spitting blood over the far-reaching changes detailed within the planned directive, while others complain that it simply hasn't gone far enough.

Well, to be Blunt...

Inevitably, given its lax history on data protection, the UK government is one of the most vocal of the 27 member states' against some of the proposed rules put forward by the EC's vice-president.

One of the areas of major concern, according to Blighty's Under-Secretary of State at the Ministry of Justice, Crispin Blunt, is Reding's notion of the "right to be forgotten" online.

He was talking on behalf of the Council of Europe, whose job it now is to scrutinise the proposed overhaul to the treaty for the overly wordy "Protection of Individuals with regard to Automatic Processing of Personal Data", otherwise known as Convention 108. The original text for that concord was agreed in 1981 and served as something of a model for the EU's 1995 directive on data protection.

Like Reding's proposed rewrite of Europe's DP law, Convention 108 also needs to be modernised to fall into step with the technology used today to handle data processing, especially online.

"In the current environment of cloud computing, social networking and other forms of new technology individuals in both Europe and beyond want to be confident that their privacy, safety and freedoms are strongly protected," Blunt said.

He opined that DP laws developed in the UK 30 years ago remained relevant today, but admitted that some points needed to be revisited.

"Simply imposing detailed prescription is unlikely to make our citizens feel safer or freer. In fact, such a regulatory straight jacket runs the risk of doing the opposite and tying the hands of individuals who seek to protect us from harm," Blunt said.

"We should look to better understand each other and our respective laws rather than unpicking enduring principles and introducing an entirely new, and quite possibly impractical regulatory framework."

The minister added that Reding's "right to be forgotten" pledge was an area where he “would like to sound a note of caution". He said that it seemed to him “at first glance to be wholly commendable” but added that policymakers needed to take a long hard look at how they planned to make such a proposal "workable".

He argued that such a move in the current shaky European economy could potentially be badly timed. Businesses might be "hampered" by such legislation, Blunt countered.

Blunt also questioned how the transfer of so much data online could be realistically dealt with by businesses such as Google that will be told – if the draft bill passes in its current form – to notify at DPA within 24 hours of a data breach taking place.

"My concern is we may be running the risk of setting the standard so high that we are unlikely ever to achieve a workable model," he said.

The UK government is well known for being something of an agitator on the data protection scene, in part because it has such disdain for the one-size-fits-all proposed law.

As Reding told me last summer: "The British point of view to open the internal market has not changed. If you are an island and you want to take advantage of the European markets then you do not want to have the rule barriers in place."

Don't hide, express yourself!

The UK is, unsurprisingly being much more publicly bullish than - say - Google about the commissioner's proposal, but that didn't stop a Mountain View privacy policy counsel, Marisa Jimenez, from bristling about some of the finer detail laid out in Reding's draft bill.

During her panel session, Jimenez often declined to comment on questions from the floor, preferring to pull faces that seemed to suggest her dissatisfaction with some aspects of the proposal. Sadly she was clearly not comfortable telling us too much about those feelings, however.

It was telling, too, that her colleague, Peter Fleischer, who had been expected to attend the event, was missing in action. One attendee, perhaps slightly unfairly, commented to me that Google does have an awful lot of work to do on the privacy front currently – which perhaps explained his absence.

He did, however, wade in with a blog post. Fleischer echoed Jimenez's earlier comments by expressing his own concerns about the right to be forgotten – a term that he considers to be a political slogan.

"As this debate unfolds, the lack of clarity is raising false expectations. As people read that there will soon be a legal 'right to be forgotten', they are asking DPAs and search engines to delete third-party content about themselves or links to such content.

"I regularly hear requests from people to 'remove all references to me, Mrs X, from the internet'. No law can or should provide such a right, and politicians and DPAs should not mislead them to expect it."

It's just a shame he wasn't present at CPDP to face questions from the floor.

Marc Rotenberg from the Electronic Privacy Information Center was at the event and argued that Google's claim that the right to be forgotten had troubling implications for freedom of expression was "a bit of a perversion".

Now the debate will shift to lobbying by online businesses and national DPAs that are keen to stamp their authoritative opinions on Reding's proposal.

There was no escaping, for example, the palpable disappointment expressed by some important players at the conference who complained bitterly about aspects of the commissioner's proposal that had clearly been watered down since previous drafts.

Christopher Docksey, a director at the European Data Protection Supervisor, highlighted some of the shortfalls.

He told me that the lack of stricter rules for international transfers was regrettable, as was the absence of mandatory power for DP authorities. Worst of all for Docksey was the fact that there was "simply nothing about how you regulate the police access to private data".

Knocking the draft bill into shape is expected to take up to two years, as the European Parliament need to reach an agreement, and there will of course be time for individual nations to argue for or against some of the finer detail contained within the 118-page document (PDF).

Most people I spoke to at CPDP were largely optimistic about the future of data protection law in Europe.

Some at the event argued passionately that it is great the debate had progressed far enough to allow for MEPs and policy wonks to work out exactly how an individual's privacy should be protected online, rather than to discuss if such regulation is actually needed in the first place. And that, for them, is in itself a significant win. ®