Save harbour agreement threatened?

23 Sep
September 23, 2015

Edward Snowden’s revelations to the world about the US’ monitoring of communications is the gift that keeps on giving.

The Advocate General to the EU Court of Justice has today issued a legal opinion which makes two findings:

1. That the Commission’s acceptance of US safe harbour arrangements does not override the ability of local courts to make their own determination as to whether the arrangements meet their local laws.

2. That the current decision of the Commission to accept the safe harbour arrangement is no longer valid.

The first finding is, in my view, fairly logical and not contentious at all – that member courts should be able to decide whether an arrangement fits their local implementation of an EU-wide directive seems logical, especially given that although the laws stem from the directive, they may not all have the same implementations.

However, the second finding is much more damning and interesting. The BBC article sets out the background to this case, but the Advocate General makes a few key statements:

It is apparent from the findings of the High Court of Ireland and of the Commission itself that the law and practice of the United States allow the large-scale collection of the personal data of citizens of the EU which is transferred, without those citizens benefiting from effective judicial protection. Those findings of fact demonstrate that the Commission decision does not contain sufficient guarantees. Owing to that lack of guarantees, that decision has been implemented in a manner which does not satisfy the requirements of the directive or the Charter [of Human Rights].

It’s clear then that based on the Snowden information, the Advocate General doesn’t believe that the US is able to offer the appropriate level of protection. This has wide ranging impact to all manner of people from service providers who have servers in the US to companies that use services like Amazon’s cloud services and even, potentially, to industries like banking and even air travel. Ultimately, it’s in the US’ interests to get this right since it will hit US business if the rest of the world can’t transfer data over there – of course that’s a pretty extreme outcome and I fully expect the EU and US to come to a new “arrangement”. They’re already negotiating, which simply lends even more weight to the advocate general’s statement:

Given such a finding of infringements of the fundamental rights of citizens of the Union, according to the Advocate General the Commission ought to have suspended the application of the decision, even though it is currently conducting negotiations with the United States in order to put an end to the shortcomings found. The Advocate General indeed observes that, if the Commission decided to enter into negotiations with the United States, that is because it considered beforehand that the level of protection ensured by that third country, under the safe harbour scheme, was no longer adequate and that the decision adopted in 2000 was no longer adapted to the reality of the situation.

Now the legal opinion is not binding on the Court, however it’s a pretty damning statement in its own right. Given the enormity of the impact this could have, I’m watching this case with interest. It might finally wake the US up to the fact that its human rights record is pretty shambolic, all the more considering their self-appointed status of police of morality for the rest of the world.

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