Brussels, 29/01/2016 (Agence Europe) - On Friday 29 January, the European and American negotiators were still seeking to finalise negotiations on the new Safe Harbor, the framework for the commercial transfer of personal data from the EU to the United States, the previous version having then invalidated by the Court of Justice of the EU in early October (see EUROPE 110404).
These negotiations are theoretically scheduled to conclude by 31 January, in order to meet the deadline the two parties set following the judgment and in line with the ultimatum laid down by the data protection authorities. However, the discussions “are difficult”, a European source us told us on Friday lunchtime; the EU “does not want an agreement at any price”, was the reaction of Christian Wigand, spokesperson to the competent Commissioner, Vera Jourova. The talks were made even more complicated on the evening of Thursday 28 January, when a commission of the American Senate adopted the Judicial Redress Act, which provides Europeans with options of recourse on American soil in the event of the misuse of their data, by adding amendments in connection with Safe Harbor.
The American senators adopted an amendment which limits the possibility for citizens to bring matters before the American courts if they are from countries which already fall within the scope of application of an international agreement on data with the United States. A further amendment would oblige the Public Prosecutor General of the United States to verify that the participating countries have no policies which are a threat to the national security of the United States, according to Reuters. The Senate as a whole has still to adopt this act, which also provides conditions for the application of the transatlantic framework agreement on personal data.
Since Wednesday afternoon, the negotiators have had to try to sort out the final issues and, in particular, access for the public authorities, such as the intelligence agencies, to the data exchanged in the framework of Safe Harbor and transferred via Facebook, Google or other American heavyweights. The Court of Justice of the EU had raised concerns at slipping into mass surveillance and described the initial Safe Harbor mechanism adopted in 2000 as providing insufficient protection for the data of Europeans.
Since then, the United States has incessantly explained that their laws have changed, improving the security of personal data, including those of Europeans. In a briefing in Brussels, held on 29 January, the Second General Counsel of the Office of the Director of National Intelligence, Robert Litt, also reiterated the difference in perception of the judgment of the Court of Justice between the American and the European side of the Atlantic. The United States takes the view that the Court of Justice never actually said that surveillance programmes based on mass data collection were “not possible”, just that these should be proportionate and targeted. The representatives of the American government went on to point out that no fewer than 24 reforms regarding data protection have been undertaken in recent years and that the United States has one of best systems for the supervision of surveillance practices in the world.
The European personal data protection authorities planned to deliver their position on the negotiations in Brussels on 3 February. In October, they warned that they would probably take measures if both sides, Europe and the US, failed to agree on a new legal framework by the end of January. Commissioner Jourova, for her part, will take stock of the dossier in Strasbourg on Monday 1 February, before the MEPs of the committee on civil liberties. (Original version in French by Solenn Paulic).