European Court Adviser Calls Trans-Atlantic Data-Sharing Pact Insufficient

23 Sep 2015 | Author: | No comments yet »

EU-US data-sharing contradicts protection rules and breaches privacy.

The advocate general of the European Court of Justice has said the mass transfer of EU user data to the US by companies such as Facebook contradicts EU data protection laws and represents a breach of the fundamental right to privacy.European companies may have to review their widespread practice of storing digital data with US internet companies after a court accused America’s intelligence services of conducting “mass, indiscriminate surveillance”.

Brussels: A deal easing the transfer of data between the United States and the EU is invalid, an adviser to the European Union’s top court said on Wednesday, dealing a blow to a system used by Facebook, Google and thousands of other companies. In a preliminary and non-binding assessment ahead of a full ruling, the Luxembourg court’s advocate general Yves Bot recommended that the court invalidate the existing “Safe Harbour” rules. In practice, this means that a company like Twitter can push stored information on a British user to a server in San Francisco, and vice-versa, and plenty of it happens on a regular basis.

In a closely-watched preliminary ruling, with far-reaching consequences for EU-US relations, Mr Bot hung out to dry Europe’s privacy paper tiger, the “Safe Harbour” provisions that streamlined transatlantic data flows. While his opinions are not binding, they tend to be followed by the court’s judges, who are currently considering a complaint about the system in the wake of revelations from ex-National Security Agency contractor Edward Snowden of mass US government surveillance. If the court follows its advocate general, it could also mean radical change for how the Irish DPC supervises US high-tech multinationals based in Ireland, including Facebook. To Facebook and other US companies collecting user data within the EU, the ruling was clear: you can either operate in Europe or you can collaborate with NSA surveillance, not both.

The opinion by Bot contains far-reaching recommendations that threaten to upend many current commercial practices and assumptions in the digital industry. He took the case to Ireland, who batted it away, effectively, by saying that America is its friend and a friend wouldn’t be so uncool and he should just chill out, bro. The arrangement allows the NSA to use the Prism surveillance system exposed by Snowden to wade through billions of bits of personal data, communication and information held by nine internet companies.

The Safe Harbour framework, which is currently being renegotiated after Snowden’s leak, did not contain any appropriate guarantees for preventing mass and generalised access to the transferred data, Bot said. It said internet users in Europe have no effective judicial protection while the large-scale data transfers are happening. “After an initial review of the advocate general’s opinion of more than 40 pages it seems like years of work could pay off. User data is their lifeblood, their currency and their profit but they are now caught between two legal stools: the US is saying ‘give us all your data’ for intelligence purposes, while the EU, according to this ruling, should be saying, ‘don’t give them our citizens’ data’.

Despite the far-reaching consequences of any final ruling, data protection advocates dismiss as overblown the dire warnings from the US that striking down Safe Harbour would somehow break the internet. That could mean that Europeans are less likely to get access to exciting new features, but on the other hand, can relax knowing that the NSA isn’t staring at pictures of our junk. Firstly: once the data left the EU, he argued, “Safe Harbour” offered the European Commission no means of oversight, beyond promises, that its standards were applied to EU data on US servers.

Snowden, a former NSA contractor, triggered a wave of controversy when he leaked tens of thousands of documents about surveillance programmes run by the US intelligence services and foreign counterparts, including Britain’s GCHQ, in 2013. Worse, Edward Snowden’s revelations about the Prism programme, whereby US tech companies allowed NSA access to its user data, suggest that vast breaches of EU privacy law is now commonplace across the Atlantic. You’ll get to keep your current user name (as long as it doesn’t contain invalid characters, in which case you’ll have to go through a few extra steps to make the transfer), and all your old comments will eventually (not immediately) migrate with you. Secondly: EU citizens are discriminated against in their efforts to rectify the matter, he wrote, as protection under US privacy law applies only to US citizens and foreign nationals resident in the US.

This is a major slap-down for the Brussels executive, exposing transatlantic data transfer provisions as less a safe harbour but a black hole for fundamental rights.

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