US, EU working to update data sharing pact ahead of court ruling

The Commerce secretary says her office is working with European regulators to clarify cross-Atlantic data sharing rules amid growing fears that a European Union high court will invalidate a critical 15-year old data pact this week

{mosads}“Following the court decision, we will continue to work with our partners in Europe to protect privacy while providing certainty for businesses,” U.S. Commerce Secretary Penny Pritzker told The Wall Street Journal in a written statement Saturday.

The European Court of Justice (ECJ) is scheduled to issue a ruling on Tuesday that could render the so-called Safe Harbor agreement invalid.

Under the 2000 agreement, tech firms such as Google and Facebook “self certify” that their data-privacy practices are equivalent to more stringent EU regulations. This allows companies to legally funnel data for EU citizens across the Atlantic.

In a non-binding opinion issued last month, an advocate general for the ECJ said U.S. intelligence practices revealed by Edward Snowden render the protections of the Safe Harbor program invalid.

Currently, around 4,000 U.S. firms rely on the Safe Harbor provision to ensure their cross-Atlantic data transactions are legal. If the ECJ upholds advocate general Yves Bot’s opinion, those companies would be left scrambling for alternatives.

“There’s a risk of a ruling that could be very disruptive and hurt economic growth both in Europe and the U.S.,” an unnamed administration official told the Journal on Friday.

The U.S. mission to the EU also warned last week that a ruling against Safe Harbor could do “significant harm to the protection of individual rights and the free flow of information.”

The Office of the Director of National Intelligence (ODNI) joined the mission in defending U.S. surveillance practices on Monday, claiming Bot’s judgment “contains a number of inaccuracies” about the NSA’s PRISM program.

“Because the surveillance carried out by the U.S. is mass, indiscriminate surveillance … in those circumstances, a third country cannot in any event be regarded as ensuring an adequate level of protection,” Bot wrote in his ECJ opinion.

Both the mission and ODNI contested Bot’s claim that the U.S. engages in mass surveillance.

“The US legal framework for intelligence collection includes robust protection for privacy under multiple layers of oversight and a remarkable degree of transparency,” ODNI General Counsel Robert Litt wrote in a Financial Times op-ed.

“The decisions of judicial bodies should be informed by accurate information,” Litt wrote. “Prism is focused and reasonable. It does not involve ‘mass’ and ‘unrestricted’ collection of data, as the advocate-general says.”

In its defense of Safe Harbor, the U.S. mission also pointed to ongoing discussions between the EU and the U.S. to update the program, saying that such efforts should be encouraged.

Pritzker and other U.S. officials have indicated that negotiators are still working to update the pact, despite fundamental disparities between the EU and U.S. approaches to citizen privacy.

“We … look forward to moving ahead, as soon as possible, past any potential court decision challenges,” Pritzker said.