US-EU data deal at risk in Face­book case judg­ment

The China Post - - COMMENTARY - BY DANNY KEMP

The EU’s top court is set to rule Tues­day on a transat­lantic data deal, re­lied on by com­pa­nies such as Face­book, a judg­ment that could see it de­clared in­valid given spy­ing rev­e­la­tions in the Ed­ward Snow­den scan­dal.

The land­mark case be­fore the Euro­pean Court of Jus­tice in Lux­em­bourg stems from a com­plaint against so­cial media gi­ant Face­book lodged against Ir­ish author­i­ties by Aus­trian law stu­dent Max Schrems.

The com­plaint fo­cuses on the “Safe Har­bor” deal signed in 2000 be­tween Brus­sels and Washington that al­lows data trans­fers by thou­sands of busi­nesses on the grounds that U.S. laws of­fer sim­i­lar pro­tec­tion to those in the 28-na­tion Euro­pean Union.

But the top le­gal coun­sel to the court said last month the mass sur- veil­lance of data by the U.S. re­vealed by for­mer U.S. in­tel­li­gence con­trac­tor and whistle­blower Snow­den means Euro­pean cit­i­zens’ pri­vacy could no longer be guar­an­teed by the agree­ment.

The court usu­ally fol­lows the ad­vice of its ad­vo­cate-gen­eral when reach­ing its fi­nal de­ci­sions.

In case it agrees the deal is in­valid, the Euro­pean Com­mis­sion — the ex­ec­u­tive arm of the EU — is widely ex­pected to an­nounce the im­mi­nent agree­ment of a new ver­sion of the Safe Har­bor pact.

The United States fired back against the EU coun­sel’s po­si­tion last week, say­ing it was based on “in­ac­cu­rate as­ser­tions.”

The case comes amid wide­spread ten­sions be­tween Brus­sels and Washington on is­sues of reg­u­la­tion, with sev­eral EU anti-trust probes cur­rently un­der­way into U.S. tech­nol­ogy firms.

“The United States does not and has not en­gaged in in­dis­crim­i­nate sur­veil­lance of any­one, in­clud­ing or­di­nary Euro­pean cit­i­zens,” the U.S. mis­sion to Brus­sels said in a state­ment last week.

“We fully re­spect the Euro­pean Union’s le­gal process; how­ever, we be­lieve that it is es­sen­tial to com­ment in this in­stance be­cause the Ad­vo­cate Gen­eral’s opin­ion rests on nu­mer­ous in­ac­cu­rate as­ser­tions about in­tel­li­gence prac­tices of the United States.”

David and Go­liath

Schrems, a right-to-pri­vacy cam­paigner in his na­tive Aus­tria, filed the case against Ire­land’s data pro­tec­tion au­thor­ity be­cause Face­book’s Euro­pean head­quar­ters are based there.

Ma­jor U.S. web giants in­clud­ing Face­book and Ap­ple have set up head­quar­ters in Ire­land to take ad­van­tage of fa­vor­able tax laws. Face­book data is then trans­ferred to servers in the United States.

The Aus­trian ar­gues that the 15-year-old Safe Har­bor deal is too weak to guar­an­tee the pri­vacy of Euro­pean res­i­dents in the wake of de­tails pro­vided by Snow­den.

Schrems is fight­ing the so­cial net­work on sev­eral fronts in what his sup­port­ers see as a fight of a Euro­pean David against a U.S. Sil­i­con Val­ley Go­liath.

In July, an Aus­trian court re­jected a class ac­tion case brought by Schrems and 25,000 other Face­book users, cit­ing in­suf­fi­cient le­gal grounds.

Dig­i­tal com­pa­nies op­er­at­ing in Europe warned that the EU court could se­verely dis­rupt the growth of the dig­i­tal econ­omy on the con­ti­nent.

How­ever they say they hope the Euro­pean Com­mis­sion would swiftly bring in a new Safe Har­bor deal to min­i­mize the prob­lems.

Larger com­pa­nies such as Face­book gen­er­ally have sep­a­rate le­gal con­tracts drawn up on their data pro­tec­tion laws that per­mit them to carry on op­er­at­ing in the event that agree­ments like Safe Har­bor break down.

Snow­den, who re­mains wanted by the United States and cur­rently lives in Moscow, opened a Twit­ter ac­count this week, just days be­fore the judg­ment.

His rev­e­la­tions showed that the U.S. Na­tional Se­cu­rity Agency’s PRISM pro­gram used Sil­i­con Val­ley giants Ap­ple, Google and Face­book to gather user data.

In the wake of the scan­dal, the EU and Washington be­gan talks to re­vamp Safe Har­bor.

A Euro­pean Com­mis­sion spokesman said re­cently that they were work­ing “tire­lessly” with Washington on fi­nal de­tails and hoped to reach a “pos­i­tive con­clu­sion” soon.

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