Skip to main content

Holiday Wishes for the U.S./EU Safe Harbor

  • date icon December 21, 2015
  • category icon

It’s the time of year when we exchange wishes for the holiday season and the New Year we are entering into.  This year, a big event for the Internet was the invalidation by the European Court of Justice of the US/EU Safe Harbor agreement. Negotiations to renew the Safe Harbor are ongoing between the Department of Commerce and the EC Commission.  The EU Data Protection Authorities have set a soft January 31, 2016 deadline for these negotiations to wrap up.  We wish the negotiators every success in reaching agreement by this deadline but ask that they focus on getting it done right rather than just getting it done.

The Internet Association has consistently highlighted two key issues governments on both sides of the Atlantic should factor into their negotiations. We mapped out these issues in a letter to the House Energy & Commerce committee in November.  First, it is important for both sides in deciding whether the U.S. privacy regime is “adequate” or “equivalent” to the EU regime to recognize the reality on the ground when it comes to U.S. commercial privacy enforcement.  The second issue is that it is important for negotiators to recognize the significant and painstaking reforms to the U.S. surveillance laws undertaken since 2013.

Last week, Professor Peter Swire carefully chronicled and explained U.S. surveillance law reforms for an EU audience in a 40+ page white paper.  Professor Swire’s paper covers a lot of ground, but on the issue of surveillance reforms his conclusion is loud and clear:

“The US Congress and executive branch have instituted two dozen significant reforms to surveillance law and practice since 2013. The [ECJ Schrems] decision said that US privacy protections must be evaluated in the “current factual and legal context,” but did not address the numerous changes put in place since 2013. This chapter provides a readable explanation of each of these actions, which together constitute the biggest set of pro-privacy actions in US surveillance law since creation of the Foreign Intelligence Surveillance Act in 1978.”

We recommend Professor Swire’s paper to anyone in search of holiday reading. We also wish the negotiation teams on both sides of the Atlantic all the best as they wrap up their efforts to renew the Safe Harbor.