Safe Harbour invalidation puts EU data in quarantine

This is not to suggest that the ECJ itself was motivated by protectionism. The court has a history of strict application of the European Charter of Fundamental Rights and previously invalidated European legislation requiring telecommunications providers to retain data for three years so it can be available for government investigations.

In the Safe Harbour case, the court faulted the European Commission for failing to address US government surveillance even though the 1995 Data Protection Directive and other EU instruments themselves have exceptions for national security.

The impact of the decision, though, amounts to a quarantine of European data, and means the companies that depend on transatlantic data flows might as well be paying tariffs on transfers of data.

This effect is a stark contrast to the announcement on 5 October of a Trans-Pacific Partnership trade agreement among Asian nations and the US.

The nearly 5,000 companies that subscribe to the Safe Harbour framework now need new data transfer mechanisms.  This is not an easy overnight transition.

Separate evaluations of data flows

Unless the EU and US agree on a new framework rapidly, companies will have to evaluate separately the legality of each kind of data flow and choose from a menu that includes new contract provisions, revised privacy policies and business practices, reconfiguring networks, and applying to data protection authorities for approval of organisational rules for data protection and for approval of certain transfers.

They will need to do all of this without impairing service to customers – and with the prospect that many of these solutions will be challenged.

In the days after the decision, literally thousands of lawyers and privacy officers rushed to take part in webinars, seminars, and conference calls, producing hundreds of questions about what to do in response to the court’s decision.

Answering all these questions will take time and money, introducing new friction and costs into transatlantic data flows.

In turn, the data protection authorities that the ECJ has empowered to exercise authority over international transfers will be inundated with new proceedings and requests to approve alternative data transfer mechanisms.

The court has opened the floodgates.

In the meantime, transatlantic data flows have not ceased, putting thousands of companies into a position where they might be accused of non-compliance with European data protection law for doing what until 6 October was lawful.

The Article 29 Working Party, a committee of all EU data protection authorities, have a contentious two-day meeting along with the commission in an effort to prevent 28 or more different ways of treating international transfers of data.

These regulators gave an end-of-January deadline to iron out new mechanisms for transatlantic data transfers, whether these involve various provisions of the existing data protection directive or a new, strengthened Safe Harbour agreement with the United States.

Seize the initiative

This means the Commission cannot temporise over this new framework. The elements of an agreement are in place, and it needs urgently to seize the initiative so that the rules for data transfers are clear and do not lurch back and forth.

In the wake of the ECJ decision, Commission vice-president Timmermans and justice commissioner Jourová acknowledged the importance of maintaining transatlantic data flows, with the latter saying “they are the backbone of our economy.”

Fifty percent of the world’s GDP and about one-third of its trade flows between the United States and Europe.

These trade flows are supported by increasing flows of digital information in many sectors, for transactions, supply chain management, logistics, customer relations and workforce management.

At a time when the US and EU are seeking to reduce impediments to trade, the backbone of the European economy is far too important to be the object of quarantine and virtual tariffs.

Cameron F. Kerry was General Counsel and Acting Secretary of the US Department of Commerce from 2009-2013, and was the chief US interlocutor with the EU on data protection and the Safe Harbour agreement. He is currently Senior Counsel at Sidley Austin LLP