Author: Andrea Monti

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The Hypocrisy of the Safe Harbour EUCJ decision

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.

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The End of the (Un)safe Harbour

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.

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Why the Right To Be Forgotten Is Plain Wrong (and What Is the Best Way to Protect Your Reputation)

The Right to be forgotten – not a “right” per se, by the way – is a distorted way to enforce the right to privacy and an actual form of censorship because strips from the Court’s hands the power to decide what should be known and what shouldn’t and, further more, is a way to enforce a bottoms-up censorship that a State can easily turn into a top-down dissent shutting.

The Right to be forgotten is the wrong answer to a (maybe) real question: how do you get rid of your embarrassing past if I’ve changed course of life?

Answer: instead of trying to hide the dust under the carpet by removing the search engines’ indexes, just use it at your advantage: run a blog, a social network page or whatever elicit the interest of the search engines’ robots and tell your story. This way you can counterbalance the (allegedly) negative effect of a news relating to you because a search engine will reveal? your side of the story too.

This, of course, if you are sincere in your life-changing effort because, if you’re not,? you might find yourself exposed again to the consequences of your con stunt.

Is the solution to the Right to be forgotten actually as simple as that?

No, because to do so you should be able to properly handle an argument, collect and provide evidences and effectively deliver your statement. And since Cicero’s adepts aren’t that much, it is better to go for the censorship solution: cheaper, faster and good for the powers-that-be.

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The Dieselgate Crisis Management: Played by the Book

The way Volkswagen is handling the Dieselgate is a very good example of proper crisis management and seems coming from a crisis management handbook (such as “Master of disaster“): once discovered, the company neither denied the facts nor tried to hide it, announced an independent review, fired the culprits, called-in a new, serious manager started cooperating with the authorities, saved the money for the inevitable fines and damages.

This way Volkswagen has been able to keep the public outcry under control because no collateral damages – such as deep burying evidences, threatening or bribing involved people, further doctoring information etc. – have been suffered, thus helping the company recover its image – and customer base – faster.