Navigating the Post-Safe Harbor Waters
A month after the European Court of Justice handed down its ruling invalidating the EU-US Safe Harbor framework, the German Marshall Fund of the United States's Berlin office invited US Federal Trade Commissioner Julie Brill to address data privacy to kick off a newly relaunched series of discussions the institution is calling Transatlantic Talks. She argued that Europeans had missed the resulting "robust conversation" that took place over data privacy in the US.
Commissioner Brill, who said she was at first saddened by the European Court of Justice's decision and what it meant regarding jobs for the over 4,000 affected firms, especially smaller ones, nevertheless had no doubts that the Federal Trade Commission, the US Commerce Department and their European counterparts would find a solution on data issues that would satisfy parties on both sides of the Atlantic before the end of January. There is a mutual recognition that data flow between the two partners is important, she said, which neither wants to endanger.
On the positive side, said Brill, calling herself a privacy advocate and citing her background in privacy enforcement, the court's decision made it clear to US companies and policymakers that, commercially speaking, privacy is a human right in Europe. The commercial side needs to catch up, she said, noting that the Fourth Amendment, which covers illegal search and seizure, applies to data collection as well and therefore ensures privacy as a fundamental right in the US, despite what some Europeans may believe.
In Brill's opinion, Safe Harbor already had adequate protections in place, she said, and was useful as a tool for ensuring compliance by her agency. "The ECJ took away the FTC's ability to protect European citizens -- we can no longer use Safe Harbor in enforcement," she said. The framework came under scrutiny, she argued, because it was "an easy target" -- albeit the wrong one. The court's decision affected companies, even though it was trying to send a message about government surveillance practices, over which the firms in question have no control, she said.
Prompted by moderator Cherno Jobatey, editorial director of Huffington Post Germany, Brill repeatedly argued against the common conception held by Europeans that Americans don't care about privacy and posited that the US has far more robust laws than the EU regarding privacy protection for citizens.
The FTC, for example, has brought hundreds of cases against companies big and small over unfair or deceptive practices, which often lead to "consent orders" wherein the company has to follow up with the agency on improvements, she said. Citing, among other proposed or newly enacted laws, the USA Freedom Act, which was prompted by the information leaked by Edward Snowden, Brill said that Europeans had missed the resulting "robust conversation" that took place over data privacy in the US and noted that Americans have a more complicated relationship with the issue as well.
As part of the discussion event, the GMF also presented a new report, titled "Transatlantic Digital Dialogue: Rebuilding Trust Through Cooperative Reform," which features policy recommendations on how to strengthen the relationship between the US and its transatlantic partners in light of the debate over surveillance practices that has come to the forefront in the post-Snowden years.
The three overarching policy recommendations, in short, include modernization of standards for authorization, oversight and transparency; development of common rules among countries over law enforcement practices regarding data; and the need for a common position on strong encryption.
Miranda Lee Murray is a Fulbright Journalism Fellow in Berlin and has written this summary for the atlantic-community.org editorial team.
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