Privacy Monday – July 29, 2013

Author:Ms Cynthia Larose
Profession:Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


NSA Surveillance Causes More Grief -Germany Calls for a Stop to Safe Harbor: Time for Binding Corporate Rules?

According to news sources the federal and state German data protection commissioners late last week sent a letter to German Chancellor Angela Merkel, requesting the suspension of the U.S.-EU Safe Harbor regime (the press release is available in German here). The commissioners argue that mass surveillance conducted by the U.S. National Security Agency (NSA) prevents US companies from protecting personal data of Germans in compliance with data protection law.

The European Commission's data protection directive prohibits the transfer of personal data to non-E.U. countries that do not meet the EU "adequacy" standards for privacy protection. To allow exchange of personal data with U.S. organizations, the U.S. Department of Commerce and the European Commission developed the "Safe Harbor" framework, allowing the transfer of personal data from the EU to the US as long as specified standards in notice, choice, onward transfer, access, security, data integrity and enforcement are met.

"The Safe Harbor agreement may not be so safe after all," said Viviane Reding, vice president of the European Commission. "U.S. data protection standards are lower than our European ones. I have informed ministers that the Commission is working on a solid assessment of the Safe Harbor Agreement which we will present before the end of the year."

The Commissioners have stopped issuing approvals for international data transfers pending the German government's demonstration that the processing of German citizens' personal data by foreign national intelligence services is in line with the requirements of the data protection law. The Commissioners argue that extent of the surveillance conducted by the NSA makes interception of personal data routine and that is not in compliance with the Safe Harbor framework.

If the German government agrees with the Commissioners and suspends Safe Harbor all companies relying on Safe Harbor for the legal transfer of personal data from the EU to the U.S. would either have to suspend such transfers or face fines by the data protection authorities.

With elections approaching, this has become a heated political debate in Germany. Chancellor Merkel has supported the U.S. surveillance and echoed President Obama's claims that surveillance prevents terrorist attacks and protects...

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