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The
Safe Harbour agreement did not do enough to protect EU citizen's
private information when it reached the United States, Yves Bot,
Advocate General at the European Court of Justice (ECJ), said.
While Bot's opinions are not binding, they tend to be followed
by the court's judges, who are considering a complaint about the
system in the wake of revelations from ex-National Security
Agency contractor Edward Snowden of mass U.S. government
surveillance.
In a trenchant ruling which will do little to heal frayed
transatlantic relations following the spying leaks, Bot also
said national data protection authorities could suspend data
transfers to third countries if they felt EU citizens' privacy
was compromised.
That would cause a headache for U.S. companies operating in the
EU, lawyers said.
DATA DISRUPTION
Many companies had hailed the 2000 Safe Harbour deal, saying it
helped them get round cumbersome checks to transfer vital data,
including payroll and human resources information, between
offices on both sides of the Atlantic.
“We are concerned about the potential disruption to
international data flows if the Court follows today’s opinion,”
said John Higgins, Director General of DIGITALEUROPE, whose
members include Apple, Cisco, Ericsson and Google.
The case stems from a complaint filed by 27-year-old Austrian
law student Max Schrems against Facebook, alleging the company
was helping the U.S. National Security Agency (NSA) harvest
email and other private data by forwarding European customer's
data to servers in the United States.
The Irish Data Protection Commissioner, who watches over major
tech companies' compliance with privacy laws since they are
headquartered in Ireland, rejected the complaint, saying such
transfers were allowed under the Safe Harbour framework.
But the case was referred to the European Court of Justice (ECJ)
after Schrems appealed.
"It is apparent from the findings of the High Court of Ireland
and of the (European) Commission itself that the law and
practice of the United States allow the large-scale collection
of the personal data of citizens of the EU which is transferred,
without those citizens benefiting from effective judicial
protection," Bot said.
The Commission should have suspended the framework following the
Snowden leaks, he said.
The United States and the Commission have been in talks for two
years to strengthen the Safe Harbour framework amid calls for
its suspension.
Herwig Hofmann, a lawyer for Max Schrems, said he was
"delighted" about the Advocate General's opinion.
"If the United States doesn’t change its laws in order to
guarantee a minimum of data protection to European citizens,
U.S. companies will have to process their data in the EU," told
reporters at the court in Luxembourg.
(Additional reporting by Pia Oppel in Luxembourg; Editing by
Alastair Macdonald and Andrew Heavens)
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