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PC Professionale just published an analysis I did about the Safe Harbour edition.

Italian only, sorry 🙂

After the EU Commission met the industry (I was there on behalf of an European industry association) to hear the voice of the business, yesterday it met the Article29 working party (the EU gathering of the national Data Protection Authorities) to explore the possibility of of a short-term solution to avoid exposing thousand and thousand of innocent companies to investigations and fines for “infringing” the data protection directive after the Safe Harbour has been stricken down by the EU Court of justice.

The outcome of this meeting has been very simple: the Data Protection Authorities just couldn’t agree on the possibility of using standard model clauses or binding corporate rules as a viable Safe Harbour alternative, refused to agree on the fact that companies relying upon the Safe Harbour for about fifteen years are entitled to a grace period and feared of no being able to stop the data flow toward the US because of the lack of resources. To put it short: the industry has been left without certainties, victim of potential legal complains, but with no alternative but carry on its activities.

I don’t know if this folks at the Article29 actually live on Mother Earth or in Outer Space. Fact is that such kind of attitude – blindly following a (questionable) reading of the EU data protection directive – is a danger for the international economic system as well as for the safety of the citizens.

According to the EUCJ , EU Commission’s Safe Harbour is invalid because of the possibility for the US intelligence/law enforcement agencies to access EU citizens’ personal data with a less degree of legal protection. The Court’s official press-release reads:

The United States safe harbour scheme thus enables interference, by United States public authorities, with the fundamental rights of persons, and the Commission decision does not refer either to the existence, in the United States, of rules intended to limit any such interference or to the existence of effective legal protection against the interference.

This is a nonsense because – like it or not – “national security” and “public order” are the? buzzwords that all over the Western world allow the withdraw of civil rights and clearly prevent the application of the privacy/data protection regulation.

EU personal data stored in US facilities are EU (i.e. foreign) first and only after personal data: this means that, for instance, under the US regulations the CIA can legally process it because these data don’t belong to American citizens. As per the FBI, since the Bureau is part of the Department of Justice, its activity is court-issued-warrant regulated. So, again, why the FBI should be denied the access to EU (i.e. foreign) data relevant for an investigation?

To put it short, then, why from an US perspective, the EU personal data should be prevented from being wiretapped, accessed or somehow accessed by US security community?

And why for instance – enforcing in reverse the EUCJ logic – the British GHCQ should be prevented to intercept US personal data in Europe for the sake of “fighting the terrorism”?

Haven’t a dozen or so CIA operatives been wiretapped (and lately, indicted) in Milan during the investigation ran in 2003 for the extraordinary rendition of an imam?

Is it a proper personal data protection for the US Department of Homeland Security to state in? the I-94 form? given the passengers? on every flight directed to the USA? that

WAIVER OF RIGHTS:
I hereby waive any rights to review or appeal of a U.S. Customs and Border Protection officer?s determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation

There are several critical issues that hamper the Safe Harbour, like the actual Data Protection Authorities check on the actual enforcement of the binding corporate rules or the standard clauses, or the confuse notion of “personal data” that in the opinion of some local Data Protection Authorities still includes the data related to legal person and to single professionals. And, therefore, there is surely ground to revise the (killed) Safe Harbour legal architecture. But using civil rights as an excuse to bash an EU Commission act, looks more like a stunt in an covert political battle instead of a purely legal dispute.

The news of the Safe Harbour bashing by the European Court of Justice is hardly a news since the EU directive 95/46 already affirmed the possibility of a local jurisdiction over transnational data-exchange.

The actual issue is that the data protection authorities didn’t have the courage to state it clearly before, leaving ISPs and Telcos without actual guidance and, more important, exposed to fines and sanctions.

As a matter of fact, the EUCJ decision doesn’t invalidate the core of the safe-harbour, unless for “safe harbour” we mean a way to export overseas personal data, claiming that EU data-protection authorities lost their jurisdiction.

From a corporate perspective, an issue to be dealt with in the EU toward USA personal data exchange, is to check whether the current agreements/policies actually comply with the directive.

From a concerned citizen perspective, the question to ask is: where were the data protection authorities until this decision was issued?

Once again, the inertia of the public services led to industry damages and low citizen’s right protection.