EU lawmakers skeptical new data deal will hold up in court

Negotiators are close to reaching a deal on a tensely-awaited transatlantic data flow agreement, EU Justice Commissioner Vera Jourova told European lawmakers on Monday.

{mosads}But despite her assurances, European Parliament members expressed deep skepticism that a new Safe Harbor arrangement with the U.S. would stand up to legal scrutiny.

“We have to be absolutely sure that this stands in court. I want to be reassured, but I am not reassured yet,” said Dutch member Sophie in ‘t Veld, who led criticism of Jourova’s presentation.

Jourova declined to offer many details on the negotiations, citing the ongoing nature of the talks, but indicated that substantial progress had been made.

“I will not hide that these talks have not been easy. It is not an easy task to build a strong bridge between two legal systems which have some major differences,” she told lawmakers. “We are close, but an additional effort is needed.”

Negotiators missed a deadline for a deal on Jan. 31, but many following the talks say they still have until Tuesday to reach an accord.

Policy experts have argued for months that any new agreement could be struck down as unilaterally as the 2000 pact, which allowed over 4,000 U.S. firms to legally handle European citizens’ data by “self-certifying” that they meet Europe’s more stringent privacy requirements.

The European high court declared the agreement invalid in October, claiming that the U.S. cannot be seen to adequately safeguard privacy because of its mass surveillance practices.

Privacy advocate Max Schrems, the man who effectively brought down Safe Harbor by lodging a privacy complaint against Facebook, has similar complaints against the company still pending in Ireland, Germany and Belgium.

“If this does not comply with the laws, then we can be sure that tomorrow, Max Schrems, a very active European citizen, plus another thousand of his friends are going to go to court,” in ’t Veld said.

Her concerns echo warnings from privacy policy experts from both sides of the Atlantic, who say that the updated agreement won’t address basic inconsistencies between the U.S. and EU approach to privacy. In Europe, privacy is a fundamental right enshrined in the EU Charter. 

“I think you will almost immediately see European data protection agencies attack the revised agreement,” said Marc Rotenberg, president of the digital rights advocate Electronic Privacy Information Center, at a recent hearing held by two subcommittees of the House Energy and Commerce Committee.

Several lawmakers also questioned the enforceability of the new pact.

Jourova revealed that the arrangement “will not be an international agreement, but an exchange of letters” requiring “signatures at highest political level and publication of the commitments in the Federal Register.”

Although she insisted that the EU Commission was seeking “formal and binding” commitments by the U.S., several lawmakers were unimpressed.

“What are the written assurances worth if the next administration will be the Trump administration or the Sanders administration? ”in ’t Veld said.

Jourova has until Tuesday to strike a deal with Commerce Secretary Penny Pritzker, who is leading the talks on the U.S. side, before Europe’s privacy regulators have said they will begin to take enforcement action.

Jourova said she is set to speak with Pritzker tonight to hammer out the remaining discrepancies in the deal.