Advocate General To Advise On EU, US Data Sharing Agreement

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Legal expert to offer his opinion on whether EU Safe Habour data sharing agreement is binding

A highly influential advisor to Europe’s top court will tomorrow give his opinion on the validity of the current data sharing agreement between the EU and United States.

The so called Safe Harbour agreement between the United States and the EU is currently being challenged in Europe’s highest court, the European Court of Justice (ECJ), by Austrian lawyer Max Schrems.

Data Sharing

The current Safe Harbour deal has been in place since 2000, and effectively allows US firms such as Google and Facebook to collect data on their European users, as long as certain principles around storage and security are upheld.

Facebook has (albeit reluctantly) admitted in the past that it shares the data of EU citizens with the National Security Agency (NSA). It said it only complies with requests when forced to by American law.

This did not sit well with Schrems, who began his Europe-v-Facebook campaign in late 2012 with the Irish data protection watchdog. In his complaint, he argues that the Edward Snowden disclosures show there is no effective data protection regime in the United States.

The case progressed to the Irish High Court, but it then referred the decision about the snooping activities of the NSA up the ladder to the ECJ.

Legal Opinion

data protectionThe case went before the ECJ in March and now the ECJ Advocate General is scheduled on Wednesday to give his opinion as to whether the data-sharing deal is still binding in light of the mass surveillance allegations by the US.

According to Reuters, the ECJ are only expected to rule on the matter in a few months times. But this week ECJ Advocate General Yves Bot will deliver his opinion in Luxembourg on Wednesday morning. It said that while the court’s judges are not bound by his opinion, they follow it in most cases.

“It could have an impact on the whole Safe Harbour system as a transfer solution,” Tanguy Van Overstraeten, a partner specialising in data protection at law firm Linklaters was quoted as saying.

“If the judges come to the situation where Safe Harbour is not valid then it could be reopening the whole story and that, for many thousands of US companies, would be very difficult because that could mean that in fact the basis of the transfer of data by them would be invalid,” Van Overstraeten reportedly said.

Indeed, if the ECJ rules against the agreement, it could have a significant impact on the business practices of Google, Facebook, Microsoft and others, as it would likely mean that transferring European data to the US much more difficult.

It could also potentially mean that tech firms have to duplicate their American infrastructure by constructing additional data centres in Europe, in order to keep European data on European soil.

Last year, Europe’s top data protection official, Peter Hustinx, said that European citizens need to be better shielded from the snooping and spying activities from the likes of the NSA and Britain’s GCHQ.

The EU is currently reviewing its Safe Harbour agreement with the United States, and is negotiating with Washington. In May it was revealed those negotiations are very close to completion.

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Author: Tom Jowitt
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