The Snowden revelations posted by The Guardian early last year just won’t stop giving lawmakers headaches. Safe Harbour is the data sharing agreement that exists between the European Union (EU) and the United States (US). The National Security Agency’s (NSA) mass spying program, known as PRISM, make Safe Harbour illegal. The Charter of Fundamental Rights of the EU guarantees all its citizens the “right to respect for private life and the right to protection of personal data.”
Some of the largest and most popular technology companies today are based in the US; in order for non-European companies to service European customers, Safe Harbour was adopted, to legally transfer data under European data privacy laws. Now the Court of Justice of the European Union (CJEU) has struck down the Safe Harbour.
According to the Advocate General Yves Bot, "the inability of citizens of the EU to be heard on the question of the surveillance and interception of their data in the United States," is "an interference with the right of EU citizens to an effective remedy, protected by the Charter."
The effects of the decision will be far reaching and devastating, although not immediate. Following the ruling of the high court, the judiciaries of individual member nations confirm the decision independently, although they are unlikely to stray from the CJEU’s ruling. Now, companies must store their European data within the EU until the US can provide real privacy protection. Although pressure from the NSA will likely make the later a long while off (Arstechnica). The EU could always attempt to negotiate another Safe Harbour agreement with the U.S., but because the CJEU’s decision is binding for European Commission as well as the European Legislature, the new legislation would have to be quite stringent.
Before the final ruling by the CJEU, the United State Mission to the EU attempted to refute the Advocate General’s logic. For one, the Mission states that the U.S. never uses “indiscriminate surveillance.” Attempting to claim that the NSA didn’t carry out mass surveillance, despite overwhelming evidence to the contrary, isn’t the least sound argument made against the Advocate General. The Mission also attempts to argue that once the EU has entered into an international agreement, it’s courts should not be able to overturn the agreement. This is an even more convoluted argument, considering the court's’ purpose is to check the powers of the other branches of government.
The feeble arguments are likely a last ditch effort to salvage the work done on other treaties that rely on the framework already defined by Safe Harbour. For example, the Transatlantic Trade and Investment Partnership (TTIP), which is still in the drafting phase, hopes to knock down “non-tariff” barriers to trade by allowing European companies to ignore product compliance with U.S. law with impunity and vice versa. The idea being that because the regulatory agencies on both sides of the Atlantic require different criteria to gain approval, companies spend double the cost, effort, and time in bringing products to market. Similarly, the Trade in Services Agreement (TISA), which hopes to deregulate companies and ensure that once privatized, companies cannot be re-nationalized, also has chapters on data sharing that referred to the framework in place by Safe Harbour, now neither treaty can pass without either cutting the offending sections or addressing the CJEU’s concerns.
While the CJEU is right to question the level of protection European personal information given in the United States, let us not forget the mass surveillance by European governments is also an intrusion of privacy.
This controversy laid out in the article relates to the issue of how nations deal with international pressures and their international responsibilities in this course. During the Detention and Interrogation unit. We saw how Poland and Macedonia were both found in violation of the EU Charter and EU Convention Against Torture and struggled to balance their responsibilities as members of the EU and their diplomatic ties with the United States. My team mate and I also relied heavily on international treaties, such as the EU Charter, EU Convention, and UN Charter, when arguing our Moot Court case: Mohamed v Jeppesen.
Source: [ArsTechnica] [WSJ]