European Parliament Debates Privacy Shield, Disagrees on Sunset Clause
As a mechanism to protect European privacy rights, Privacy Shield isn't perfect and never will be, EU Justice Commissioner Vera Jourová said at a European Parliament debate Wednesday. The EC couldn't fully achieve what it wanted in the negotiations because it has no power to change U.S. law, but it will keep monitoring developments there, she said. Nor could the commission affect how the U.S. accesses data for national security purposes when it can't even force EU countries to be more transparent about it, she said. The EC isn't fully satisfied with Privacy Shield but believes it's a reasonable compromise, she said. Members of the European Parliament (MEPs), who vote Thursday on a nonbinding resolution on trans-Atlantic data flows, remain divided over the effectiveness of Privacy Shield, and split over a proposal by some of the political groups to include a sunset clause in the agreement.
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Talks on Privacy Shield in the Article 31 Committee, which plays a role in the making of EU law, are "positive" and could wrap up by the end of June or early July, an EC spokeswoman told us. EU governments "are supportive of our approach to discuss a few changes with the US following the [opinion of the Article 29 Data Protection Working Party (WP29)]," she said. The Article 31 committee plans to meet again June 6 and 20, she emailed. A second accord, the "umbrella agreement" on data transfers for law enforcement purposes, will be signed in Amsterdam June 2, Jourová said.
WP29's April 13 opinion recommended further improvements (see 1604130002) to Privacy Shield, the commissioner said. The EC takes its advice very seriously and is working on those improvements, she said. But some actions can be taken only by the U.S., and the EC is in talks about these further clarifications, Jourová said. Once agreed upon, they will be submitted to the Article 31 committee, with Privacy Shield planned to be up and running by summer, she said.
Privacy Shield has the backing of the Council, said Bert Koenders, foreign minister for the Netherlands, which holds the EU Presidency. It will provide a significantly enhanced system of oversight and enforcement that will boost its credibility, he told lawmakers. The legislative debate made clear that smooth data flows can never be unchecked data flows, but also that smooth flows between the EU and the U.S. are important, he said. "The better is the enemy of the good."
A successor to safe harbor is urgently needed, said MEP Axel Voss of the European People's Party and Germany. Political disputes have centered on the proposed sunset clause, which Voss and some other lawmakers said is unnecessary because of Privacy Shield's annual review clause. A trans-Atlantic deal is essential for trade, and Privacy Shield is a step in the right direction, said Helga Stevens of the European Conservatives and Reformists Group and Belgium. Some political groups believe just having a replica of safe harbor is sufficient, but the EC must ensure the creation of an operational Privacy Shield, she said.
MEP Sophie in 't Veld agreed Europe needs an agreement that works. She warned that Privacy Shield isn't likely to do so. In 't Veld, of the Group of the Alliance of Liberals and Democrats for Europe and of the Netherlands, said she is "not the least bit convinced" that U.S. written assurances for mechanisms such as the ombudsperson to deal with Europeans' request for redress for data misuse will do the trick. The EC, she said, seems to be ready to make a decision that's not "Schrems-proof," referring to the European Court of Justice ruling that threw out safe harbor. The EC has worked hard to achieve results on Privacy Shield and "yes, there is progress," said Jan Philipp Albrecht, of the Group of the Greens/European Free Alliance and Germany. Privacy Shield isn't a significant improvement over safe harbor so the only honest thing to do is to set a sunset clause, he said.
Other lawmakers said Privacy Shield should be approved. The U.S. is a traditional partner with Europe and negotiations should be held in an atmosphere of mutual confidence and not suspicion, one said. He urged colleagues to be rational, and not to interpret the right to privacy in a way that makes it impossible for governments to protect citizens' security on both sides of the Atlantic.