Tough Talk On Transatlantic Privacy, Once Again

The EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, ahead of her US visit announced “a tough tone” on remaining gaps in the implementation of the privacy shield, the arrangement that allows to transfers of data of EU citizens to the United States. Speaking before the EU Parliament’s Committee on Civil Liberties (LIBE), Jourová said while she had heard the privacy shield was not a priority of the US administration, “it will be a priority, if we make clear that we will suspend the system if it doesn’t work,” adding, “My patience is coming to an end.”

The privacy shield is the follow-up arrangement to the safe harbour agreement which has been annulled by the European Court of Justice. While some progress has been made in implementing the commitments agreed upon by both sides in the new agreement since March 2017, the failure to establish an ombudsman’s office is seen as a make-or-break issue from the EU perspective.

“What we want to see is a full-fledged ombudsperson office,” Jourová, of the Czech Republic, told the LIBE Committee, adding that the ombudsperson had been recommended by the US side as the place to which EU citizens could turn in case they wanted to challenge the legality of US law enforcement’s access to their data.

Jourová acknowledged that the EU data protection officials set 25 May as the deadline for the US to set up the ombudsperson’s office implementation and some other top commitments. That date is the day when the EU General Data Protection Regulation (GDPR) will become effective.

The data protection officials have announced they would consider challenging the privacy shield before the European courts. This could result in another annulment and, as a result, the withdrawal of the adequacy decision by the EU Commission. Adequacy decisions currently are prepared for Japan and Korea, both of which are in negotiations with the European Commission.

The European Union also expects the US administration to fill the vacant positions on the Privacy and Civil Liberties Oversight Commission, and Jourová said she was following closely the developments of Section 702 of the Foreign Intelligence Surveillance Act, which allows US authorities snooping on third country nationals. The recent renewal, which members of the EU Parliament criticised as strengthening the powers of the US authorities vis-à-vis EU citizens, was scrutinized by the EU Commission services with a view of “what we need to have guaranteed from the US side,” Jourová said.

At the same time, she announced that she would be discussing the issue of cross-border access to digital evidence.

The EU Commission currently is preparing a legal instrument that will allow EU law enforcement to ask service providers in all EU member states for digital evidence. The EU Commission is interested in extending the eEvidence rules beyond the EU, Jourová said.

Mentioning the “Clarifying Lawful Overseas Use of Data (CLOUD) Act” proposed by several US senators in Congress, Jourová pointed out that in an effort to extend the EU eEvidence, she would also discuss with US counterparts a potential system of reciprocity between the partners. That’s because “we see that under the current arrangement a lot of evidence can be transferred to the US and we have to make sure that our law enforcement will be able to get it,” she said.

 

Image Credits: EC Audiovisual Service