Written by Luke Dixon
The European Parliament has voted emphatically in support of a report produced by its Civil Liberties, Justice and Home Affairs Committee (LIBE) on the mass surveillance undertaken by the U.S. National Security Agency (NSA) and EU Member States. In doing so, the Parliament has called for the immediate suspension of the EU-U.S. Safe Harbor scheme, pending a review of how the scheme is conducted.
The scheme allows businesses to self-certify compliance with EU data protection law, thereby legitimizing exports of personal data from the EU to locations in the U.S., where such exports would otherwise be illegal under EU data privacy legislation. The Federal Trade Commission administers and enforces the scheme.
Safe Harbor has come in for much criticism from European political quarters over the past few months, particularly in the wake of the Edward Snowden revelations about NSA mass surveillance of EU citizens. The European Commission published a report in November 2013 that highlighted a number of areas in which the scheme should be strengthened in order to survive.
The Safe Harbor scheme is probably the most common mechanism used by U.S. businesses, with an EU presence, to legitimize EU-U.S. data exports under the EU Data Protection Directive. As such, businesses relying on the scheme should monitor its status, in case they need to rely on alternative mechanisms to legitimize their data exports and keep on the right side of EU law.
The European Parliament’s vote is the latest example of the uncertainty that surrounds the future of the Safe Harbor scheme (at least in its present guise). However, under EU law, the decision whether to suspend the Safe Harbor rests with the European Commission, and not the Parliament. Whilst the Commission has expressed a need for reform of the Safe Harbor, it has confirmed its intention to persevere with the scheme provided those reforms are met.
The criticism levelled at the scheme has a strong political dimension, and it will be political and economic considerations that, ultimately, decide Safe Harbor’s fate, rather than sabre-rattling from the European Parliament. Businesses that rely on the scheme should remain vigilant and monitor events closely.