Saturday

22nd Feb 2020

EU-US data pact skewered in court hearing

A lawyer for the European Commission told an EU judge on Tuesday (24 March) he should close his Facebook page if he wants to stop the US snooping on him, in what amounts to an admission that Safe Harbour, an EU-US data protection pact, doesn’t work.

“You might consider closing your Facebook account, if you have one,” European Commission attorney Bernhard Schima told attorney-general Yves Bot at the European Court of Justice in Luxembourg.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or join as a group

The panel of judges were discussing the implications of US-led mass surveillance on the 15-year old data transfer agreement that is supposed to “ensure an adequate level of [data] protection” whenever the personal data of EU nationals is transferred to firms based in the US.

Safe Harbour underpins a multi-billion euro business for big tech firms like Google and Facebook, which need and use the data to target online ads for people living in EU countries.

But the agreement - signed off by the European Commission - has come under intense scrutiny following the 2013 media revelations that spy hubs in the US and UK had, among other things, siphoned off data transfer flows by tapping directly into under sea cable networks.

Edward Snowden, the former National Security Agency (NSA) contractor, says the spy agency had also used a programmed dubbed “Prism” that granted them data access to US tech firms like Facebook.

This led Austrian national Max Schrems to lodge a complaint with Ireland’s data protection commissioner on the transfer of personal data to the United States from Facebook Ireland.

Schrems says the protection of personal data transferred by the company to the US cannot be guaranteed in light of the Snowden revelations.

But Ireland’s commissioner turned down the claim and refused to investigate, noting that there was no evidence Facebook wasn’t complying with the Safe Harbour principles.

Schrems appealed to Ireland’s High Court, which found that the US had “mass and undifferentiated” access to the data. The High Court adjourned the case and is now asking the ECJ to help clarify the data transfer rules.

A number of member states spoke out in defence of Schrems.

A lawyer representing the Austrian government told the judges that Safe Harbour is better suited for “pirates” than the protection of data of EU citizens.

“Safe Harbour is not in fact for the data of EU citizens, but is at best a safe harbour for data pirates,” said Austrian government lawyer Gerhard Kunnert.

A lawyer for Poland’s government also said data protection commissioners should be allowed to suspend flows “when an individuals’ rights may be infringed”.

The commission, for its part, had already declared the pact was riddled with problems two years ago and then issued the Americans 13 recommendations to ensure an “adequate” protection of privacy.

Those talks are still ongoing, casting doubt on whether the European Commission is serious in its efforts despite calls from the European Parliament to scrap Safe Harbour altogether.

It is up to the European Commission - via so-called adequacy decisions - to determine whether US domestic law and international commitments offer Europeans sufficient data protection safeguards.

Asked by the judge if the protection of personal data in the charter of fundamental rights is applied when the commission issues an adequacy decision, the commission lawyer said “No”.

“The decision of the adequacy cannot become invalid from one day to another because of new developments,” added the lawyer.

He noted that so long as talks with the Americans are on-going, then the power of national data protection authorities to possibly suspend data transfers in individual cases is limited.

He also said that the Brussels executive is unable to guarantee “adequate” safeguards are respected.

The revelation provoked an outcry from Max Schrems who told this website that it was the most striking thing he heard.

No harm done

Lawyers for Ireland’s data commissioner said there is no evidence that the transfer of Schrems’ data to the US has caused him any harm.

“That is not surprising given that the National Security Agency is not currently interested in essays written by law students in Austria,” said the Irish lawyer.

“The fact that he is not being harmed at the moment may be what allows you [ECJ] to give the commission some further time to conclude its negotiations.”

The Court’s advocate general is set to issue an opinion on 24 June.

Insight

How big is Germany's far-right problem?

The Hanau shooting was a national wake-up call to the scale of far-right extremism in Germany, from violent individuals to political hate speech.

Exclusive

Balkan spies 'feed' EU's police database via Czechs

Western Balkan secret services have handed over more the 250 alerts on suspected foreign terrorist fighters since last summer - fed into the EU's police database by the Czech Republic, according to a confidential document seen by EUobserver.

News in Brief

  1. Bulgarian PM investigated over 'money laundering'
  2. Greenpeace breaks into French nuclear plant
  3. Germany increases police presence after shootings
  4. NGO: US and EU 'watering-down' tax reform prior to G20
  5. Iran: parliamentary elections, conservatives likely to win
  6. Belgian CEOs raise alarm on political crisis
  7. Germans voice anger on rise of far-right terrorism
  8. EU leaders' budget summit drags on overnight

Polish 'LGBTI-free zones' not ok, says EU commission

The European Commissioner for equality Helena Dalli has said the distribution of 'LGBTI-free zones' stickers or the adoption of anti-LGBTI resolutions cannot be allowed. Some 86 towns in Poland have so far declared themselves 'LGBTI-free zones'.

Stakeholders' Highlights

  1. Nordic Council of MinistersScottish parliament seeks closer collaboration with the Nordic Council
  2. UNESDAFrom Linear to Circular – check out UNESDA's new blog
  3. Nordic Council of Ministers40 years of experience have proven its point: Sustainable financing actually works
  4. Nordic Council of MinistersNordic and Baltic ministers paving the way for 5G in the region
  5. Nordic Council of MinistersEarmarked paternity leave – an effective way to change norms
  6. Nordic Council of MinistersNordic Climate Action Weeks in December

Latest News

  1. No breakthrough at EU budget summit
  2. EU leaders struggling to break budget deadlock
  3. German ex-commissioner Oettinger lands Orban job
  4. How big is Germany's far-right problem?
  5. Plastic and carbon proposals to help plug Brexit budget gap
  6. Sassoli repeats EU budget rejection warning
  7. Why Miroslav Lajčák is the wrong choice for EU envoy
  8. Unhappy EU leaders begin budget haggle

Join EUobserver

Support quality EU news

Join us