US wants global data law
'Sort your own out first'
US privacy officials have made advances to Richard Thomas, Britain's information commissioner, about formulating an international data protection law for the era of globalisation.
The US has been pushing for more widespread data sharing between governments so it can track people it thinks are not safe to travel. But privacy officials in Europe have already hindered US attempts to routinely collect intelligence from foreign commercial databases, such as the passenger name records it takes from airlines and the bank data it took from the Belgian firm SWIFT.
US officials are fed up with being derided for having privacy laws that are too feeble restrain an administration prepared to put its mission to pacify the world before individual privacy.
"Why don't we just all get together and sort out our differences?" US privacy officers are saying to the Europeans. They are also reminding people that their privacy laws might be complex, and of varying strength in different states, but they do exist.
Federal privacy officers were making sure the US war on terror didn't trounce the civil liberties of ordinary people, Jane Hovarth, chief privacy and civil liberties officer for the United States Department of Justice, told the international conference of Data Protection and Privacy Commissioners last week.
"We have to make sure we help the balance and call them to task because that doesn't naturally come when they talk about safety sometimes," she said of the FBI's anti-terrorism efforts.
Brave words, yet the US might have to bring its protections to European levels before it can get anyone else to join it in any treaty - and that's before Europe considers how outmoded its own privacy regulations have become.
US and EU officials may agree on privacy principles, but the US falls down in practice, Peter Schaar, German data protection commissioner and head of the Article 29 Working Party that co-ordinates privacy regulators across Europe, told The Register. Harmonisation between the two will be tricky, and not just because the US is not for conceding in such matters. There's also little hope because its privacy might be impossible to tackle politically.
US privacy officers are hopeful that if the democrats win the mid-term elections, there are bills that could be passed to address the inadequacies of their privacy rules. The element of this that would require corporations to respect individual privacy is likely to be passed into law because companies like Google and eBay are both backing the idea. They have to because they have been getting bad publicity about privacy under the current US regulatory system.
There is even hope of a public sector data protection law, which might prevent diplomatic upsets like those over PNR and Swift.
Yet with the democrats hoping to win a US election in two years, they would not risk trying to push through a bill that Republicans could accuse of weakening the homeland defences in the war on terror, said Gus Hossein of campaign group Privacy International.
(That it was supposed to be a failure of intelligence administration and not intelligence gathering caused the US secret services to overlook the 9/11 attack, will be neither here nor there to US voters).
Even private sector privacy laws in the US might not please officials in Europe. Though they commend US firms for their widespread use of privacy statements, and its legal system for prosecuting people for trade descriptions violations when they don't meet their declared level of service, the free market impetus only takes privacy so far.
US agreements don't seek consent from subjects about the collection and use of their data. A private sector data protection law backed by industry is likely to concede only notification of data use, not consent.
Data protection officials from countries outside the US also seem to assume that an international agreement would require the US to meet European standards. Whereas, their previous skirmishes with the US, and a desire among some Europeans to weaken data protection rules to allow less restrained anti-terror investigations, might require the EU take a step down.®