BY ASHLEY MORALES – The United States-European Union Safe Harbor Framework stemmed from the European Commission’s Directive on Data Protection, which went into effect in 1998.[1] The Directive prohibited the transfer of personal data to non-European Union countries that did not meet the adequacy standard for privacy protection.[2] The European Union has relied on comprehensive legislation that requires the creation of independent data protection agencies.[3] This policy would hamper the ability of the United States to participate in transatlantic transactions.[4] In order to bridge any difference between the United States and the European Union’s privacy policies, a safe harbor framework was developed.[5] The European Union approved the Framework in 2000. It serves as a way for United States organizations to avoid experiencing interruptions in business dealings with the European Union.[6]
The European Union’s highest court has struck down the very framework that allowed and eased the flow of information across the Atlantic.[7] The court’s decision gives officials on both sided a change to start over on developing policy in data protection. Efforts to improve the Safe Harbor agreement require political reform by the National Security Agency because of their eavesdropping practices.[8] The National Security Agency and its practices were at the heart of the European ruling on the Safe Harbor Agreement.[9] The decision was sparked by a case brought by an Austrian privacy activist, Max Schrems. He claimed that Facebook violated the Safe Harbor agreement because of the National Security Agency’s PRISM program. The PRISM program allows officials to collect material including search history, content of emails, file transfers, and live chats.[10] The PRISM program was created in response to the
United States’ call to increase the scope of surveillance.[11] Schrems claimed that Facebook could not comply with Safe Harbor because of PRISM. The decision from the European Union’s highest court will cause companies to negotiate individual agreements with European Union countries to store any information outside of Europe. The existence of PRISM creates difficulties for the European Union and the US to create a new Safe Harbor agreement that would fix any surveillance problems. In order to correct these surveillance issues, the United States would be forced to revise surveillance authorities and take into account the rights of those in the European Union and around the world.[12] Even with these obstacles, David O’Sullivan, the European Union’s ambassador to the United States, is confident that a new transatlantic data transfer deal with new privacy protections can be created.[13]
The European Union’s opposition toward government surveillance into the lives of European citizens has caused the US to reevaluate privacy provisions. The United States has been forced to consider expanding its focus to not only the privacy concerns of its own citizens but now also to the privacy concerns of other nations as well. Will the United States rise to the occasion of implementing new privacy reforms with regard to the NSA and the PRISM program for its citizens and those of other nations, or will the United States decide to maintain its current surveillance policies for the sake of national security and convince the European Union to once again create a pact that violates their own views towards privacy for its citizens?___________________________________________________________________________________________________
[1] Anne Flaherty, Jack Gillum, Matt Apuzzo, and Stephen Braun, Secret to Prism Program: Even Bigger Data Seizure, The Big Story (Jun. 15, 2013 7:40 PM), http://bigstory.ap.org/article/secret-prism-success-even-bigger-data-seizure.
[2] Amie Stepanovich, Opinion: With Pervasive Government Surveillance, There Are No Safe Harbors, Christian Science Monitor (Oct. 8, 2015), http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/1008/Opinion-With-pervasive-government-surveillance-there-are-no-safe-harbors.
[3] Jack Detsch, EU Diplomat: Safe Harbor 2.0 Must Guard Europeans’ ‘fundamental rights’, Christian Science Monitor (Oct. 9, 2015), http://www.csmonitor.com/World/Passcode/2015/1009/EU-diplomat-Safe-Harbor-2.0-must-guard-Europeans-fundamental-rights.
[4] Export.gov Helping U.S. Companies Export, http://www.export.gov/safeharbor/eu/eg_main_018476.asp (last visited Oct. 12, 2015).
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Jack Detsch, EU Diplomat: Safe Harbor 2.0 Must Guard Europeans’ ‘fundamental rights’, Christian Science Monitor (Oct. 9, 2015), http://www.csmonitor.com/World/Passcode/2015/1009/EU-diplomat-Safe-Harbor-2.0-must-guard-Europeans-fundamental-rights.
[11] Amie Stepanovich, Opinion: With Pervasive Government Surveillance, There Are No Safe Harbors, Christian Science Monitor (Oct. 8, 2015), http://www.csmonitor.com/World/Passcode/Passcode-Voices/2015/1008/Opinion-With-pervasive-government-surveillance-there-are-no-safe-harbors.
[12] Id.
[13] Glenn Greenwald and Ewen MacAskill, NSA Prism Program Taps In To User Data of Apple, Google and Others, The Guardian (June 7, 2013 3:23 PM), http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data.
