[A2k] Safe Harbor Suspension by EU Court of Justice Is an Essential First Step

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Thu Sep 24 06:43:37 PDT 2015


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Permanent link: https://www.laquadrature.net/en/Safe-Harbor-Suspension-by-EU-Court-of-Justice-Is-an-Essential-First-Step

Safe Harbor Suspension by EU Court of Justice Is an Essential First Step

*** Paris, 24 September 2015 — The Advocate General of the Court of Justice of the European 
Union (CJEU) published on 23rd September his conclusions [1] in the case "Maximilian Schrems 
against Data Protection Commissioner". The Advocate General, Yves Bot, recommends an 
invalidation of the Safe Harbor [2] agreement which regulates the transfer of personal data of 
European citizens by online services like Facebook, to the United States. The Advocate General 
considers that the surveillance carried out by US intelligence services hinders fundamental 
rights of European citizens. 

La Quadrature du Net welcomes these clear and protective conclusions, and hopes that the EU 
Court of Justice will have the courage to follow him in challenging Safe Harbor as demanded by 
civil society since the first Snowden revelations. Additionally, putting Safe Harbour aside, his 
analysis of the NSA's practices should also apply to mass surveillance by European governments, 
such as France.**

The case "Maximilian Schrems against Data Protection Commissioner" is related to the transfer of 
personal data of European citizens towards the United- States in the use of services such as 
Facebook. As revealed by Edward Snowden, these data are then available for the US intelligence 
services through programs such as PRISM. The issue at hand is the competence of national 
supervisory authority, and the role of the Safe Harbor agreement that regulates the personal 
data transfers of EU nationals when they use services hosted in the US since 2000. 

Safe Harbor is supposed to guarantee a similar level of protection of personal data in the US to 
the one present in Europe for EU citizens. Called the "security sphere" between Europe and 
United States, it allows a very high circulation of personal data. Safe Harbor concerns 
companies such as Google, Facebook, Amazon, Twitter, Apple (all companies which are an essential 
element of the NSA's PRISM program).

Yves Bot, Advocate General of the CJEU, examines in his conclusions few fundamental questions:

  * What is the role and what are the competencies of a national supervisory authority against 
EU agreements such as the Safe Harbor? Does the authority have the ability to investigate and 
act upon the companies covered by this kind of agreement?
  * What happens when the agreement, signed 15 years ago (Safe Harbor is in effect since 2000), 
has not been revised since though it was publicly known that personal data processing was done 
out of the purposes of the agreement?
  * Shall we consider that US intelligence services accessing European citizens data respect the 
principles of proportionality and the explicit purposes judged necessary to the respect of 
fundamental rights in Europe when they are invoked through national security reasons?
  * How to respect EU citizens rights when there is no possibility of an effective remedy 
respecting the EU standards in the country receiving the personal data?
  * Could the European Commission suspend the transfer of personal data or periodically revise 
the Safe Harbor in order to verify if the criterias of conformity provided at the origin are 
still respected?

To those questions, the Advocate General answers that:

  * A national supervisory authority has the right and the duty to defend the citizen even in 
the presence of a EU agreement;
  * The European Commission should periodically verify the conformity of the Safe Harbor to the 
EU standards of data protection;
  * the conditions respecting the principles of proportionality and the explicit purposes are 
not respected by the US intelligence services;
  * EU citizens do not have the necessary guarantees to exercise their rights against the 
processing of their data by the intelligence services
  * by consequences, the Safe Harbor must be invalidated and suspended

These conclusions are very important because they justify the concerns raised by many citizens 
and organizations about the Safe Harbor, which, for years, has made easier the access to the 
personal data of European citizens to US intelligence services. In spring 2014, MEPs have 
requested its suspension [3]. The European Commission suggested a revision which is still 
ongoing. Meanwhile, the personal data of European citizens continue to fuel US surveillance 

These conclusions follow a plea introduced in June 2013 by Austrian activist Max Schrems, and 
provide a once-in-a-lifetime opportunity to redefine the general framework for personal data 
transfers, especially after the Snowden revelations. This means that the existence of 
surveillance programs and massive data collection through internet services and suppliers, both 
in the US and Europe, must be taken into account. In his conclusions, the Advocate General 
condemns the use of national security as the ultimate reason to bypass the fundamental rights of 
citizens, and refers to the Digital Rights decision of 2014 [4] on data retention that 
establishes very clear principles that really protect citizens.

Hence, these conclusions fall right within the approach promoted by Civil Rights associations, 
and as such, La Quadrature du Net applauds the work and reasoning shown in the Advocate 
General's conclusions.

_**"The Court of Justice will give its decision in few weeks. It must follow the conclusions of 
the Advocate General, so as to allow for a thorough overhaul of the framework around EU-US data 
transfers. However, for this decision not to lead to a fool's game through a simple data 
relocation — which would facilitate their surveillance by the EU intelligence services — judges 
must also ensure that the applicable laws on this side of the Atlantic fully respect privacy and 
reject the principle of large-scale surveillance. At a time when countries such as France, the 
United Kingdom or the Netherlands are legalising mass surveillance practices deployed in the 
past few years by their national intelligence agencies, jurisdictions such as the ECJ must also 
be quick to stand firm against them as well.

In this regard, Yves Bot's conclusions also hint at how the case-law around secret surveillance 
should adapt so as to rule out unacceptable laws which, like the bill on international 
surveillance currently debated in the French Parliament, are modelled after the NSA. There is 
still a long way to go, but these conclusions are a step in the right direction"**_, said Félix 
Tréguer, co-founder of La Quadrature du Net.

* References *

   [1]: http://curia.europa.eu/juris/document/document.jsf?text=&docid=168421&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=326249
   [2]: https://en.wikipedia.org/wiki/International_Safe_Harbor_Privacy_Principles
   [3]: https://www.laquadrature.net/en/european-commission-must-listen-to-parliaments-call-to-act-against-surveillance-programmes
   [4]: https://www.laquadrature.net/en/data-retention-eu-court-of-justice-denounces-mandatory-data-retention

** About La Quadrature du Net **

La Quadrature du Net is an advocacy group that defends the rights and freedoms of citizens on the Internet. More specifically, it advocates for the adaptation of French and European legislations to respect the founding principles of the Internet, most notably the free circulation of knowledge. 

In addition to its advocacy work, the group also aims to foster a better understanding of legislative processes among citizens. Through specific and pertinent information and tools, La Quadrature du Net hopes to encourage citizens' participation in the public debate on rights and freedoms in the digital age.

La Quadrature du Net is supported by French, European and international NGOs including the Electronic Frontier Foundation, the Open Society Institute and Privacy International.

List of supporting organisations: https://www.laquadrature.net/en/they-support-la-quadrature-du-net

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