Wednesday

16th Jan 2019

EU commission bans public scrutiny on US data talks

  • The Commission opposes open discussions Safe Harbour negotiations (Photo: Bob Mical)

The European Commission is imposing gag orders on MEPs and preventing journalists access to discussions at the parliament’s civil liberties committee.

A commission-imposed clampdown occurs whenever an official is requested to speak about on-going negotiations with the Americans on the transfer of personal data of EU citizens through the Safe Harbour agreement.

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A minor protest erupted at the Safe Harbour session in the committee last week when far-left MEP German Cornelia Ernst along with Dutch liberal Sophie In't Veld voted to suspend the so-called in-camera session.

In-camera sessions are not open to the public. It also means MEPs are under threat of sanctions should they discuss the issue outside the room.

But the two MEPs were outvoted by the around 15 present as both centre-left and centre-right committee members voted in favour of keeping the meeting secret.

EUobserver understands group coordinators German centre-left Birgit Sippel and German centre-right Monica Hohlmeier voted down the motion.

Neither one responded to questions asking them why.

British centre-left MEP Claude Moraes, who heads the civil liberties committee, told this website he plans to organise meetings with the coordinators to discuss how best to deal with in-camera sessions.

“Whilst the LIBE Committee itself cannot draft new rules, we can decide on best practices within the limits provided by the rules,” he said in an email.

An internal parliament document on in-camera meetings, seen by this website, notes that coordinators may request Moraes, prior to the meeting, to provide an explanation as to why a certain item should be held in-camera.

It also notes that "any citizen of the Union, and any natural or legal person residing or having its registered office in a member state" can request for an in-camera session to be recorded. Once recorded, the session is considered a document that anyone can ask to have access to.

In't Veld said the problem extends beyond the parliament, its rules, and the committee.

“I spoke to [European Commission vice-president Frans] Timmermans, I bumped into him a couple of days ago and asked him about this and he didn’t seem to be terribly aware of the whole thing. Actually, he wasn’t aware of the whole transparency regulation to begin with,” she said.

The dissenting MEPs say the session where the protest vote was held did not reveal anything of substance on the issue.

"We hear absolutely nothing that justifies the in-camera, nothing," said In't Veld.

The data law in question

Safe Harbour is enforced by the US Federal Trade Commission and is supposed to ensure US firms follow EU data protection laws when processing the personal data of EU citizens.

Last November, the former EU justice commissioner Viviane Reding published 13 recommendations that the Americans needed to implement in order to keep the agreement viable.

The commission official, invited to update the MEPs on the negotiations, revealed that Washington has an issue with three of the 13 recommendations.

The Americans are unhappy with the commission’s proposal to require companies to publish the privacy conditions of any contract they conclude with subcontractors.

They also see problems with so-called “ex officio investigations” used to screen compliance through random checks.

The biggest stumbling block is the commission’s recommendations on law enforcement access and national security exceptions, due in part, to the limited role of the US commerce department to negotiate on the matters.

The law enforcement access creates other problems as well.

Companies, under certain US Patriot Act provisions, are banned from notifying the data subject or the data protection authority in Europe should US authorities request access to the personal details of an EU national.

"It puts American companies in this Safe Harbour context between a rock and a hard place,” said Ann La France, a corporate lawyer and data expert at Squire Patton Boggs.

The European Commission, for its part, did not respond to repeated requests on the justification of the in-camera session on Safe Harbour.

There have been six in-camera sessions on Safe Harbour in the committee since July.

The latest session was held on Thursday (11 December).

The secret briefings have been going on for the past couple of years but picked up after the Guardian newspaper revealed that the American spy agency NSA was conducting indiscriminate and mass surveillance on EU citizens.

One EU source said that the committee erupted in laughter at one closed session when a representative from a member state simply read out a statement on the spy scandal.

“We get the feeling that whenever it was about the US, it was in-camera,” said the contact.

The LIBE committee, as a whole, has never refused an in-camera session.

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