USA und EU USA and EU near data protection agreement

The bugging and spying activities of the US secret service NSA, which haven’t even spared the highest government representatives of the EU, have placed a considerable strain on transatlantic relations between the European Union and the US administration. As a result of the affair, mutual trust has hit a historical low. In light of the announcement that Angela Merkel had been tapped, many political commentators in Germany are asking: What exactly is our chancellor suspected of?

The US secret service’s data acquisition mania was set in motion shortly after the tragic events of 9/11 through the so-called “Patriot Act”. This special law gave investigators in the Home Security department wide ranging legal authority to secretly gather data across the world. Even US citizens are only minimally protected regarding their right to privacy.

In Europe however, the protection of personal data has a totally different standing compared to the USA. Here there are umbrella organisations in all countries who strive to achieve the highest data protection standards for their respective citizens but also for the economy and consistently apply pressure on the government. Now, after the PRISM revelations, outrage is particularly fierce and has paved the way for a collective European standpoint on data protection against the USA.

Up until now, the EU – often unmonitored in the diplomatic background – has tried in vain to at least ensure Europeans the same legal standing as US citizens concerning the transfer of their data to the USA. This could now be achieved. On 18th November 2013, after over three years of negotiations, an EU delegation under the leadership of Justice Commissioner Viviane Reding was able to force a pledge from the US government for a collective data protection agreement.

The debate on data protection at this high-ranking political meeting was of course embedded in the overriding topic of improved cooperation between USA and EU authorities in the fight against terror and the general prosecution of criminal offences. Collective measures for the prevention of child abuse, defence against terror and against violent extremism were included just as much as strategies against cyber criminality and illegal immigration.

For the European side, however, getting the Americans to shift on data protection was the stand-out topic. The US government is said to have recognised that the excessive activities of their secret services has led to regrettable tensions with Europeans. In a joint press release US Justice Minister Eric H. Holder and Commissioner Reding confirmed the intention to award greater attention to the protection of citizens and to re-establish a relationship of trust through an improved addressing of the data protection agenda. Simultaneously the negotiators announced a strengthening of the cooperation in justice and police matters. In an interview with the “Zweiten Deutschen Fernsehen – ZDF” (terrestrial German TV channel) the EU commissioner informed the European public about the Americans’ plan to provide a data protection skeleton agreement together with the EU by summer 2014 which will give EU citizens the same legal standing as US citizens. After more than 12 years of the “Patriot Act” the USA also want to rethink and update the terms of this special law and therefore the legal foundations for the activities of their secret services.

Data protection expert from the Green Party in the European Parliament, Jan Philipp Albrecht, described the American insight as an “important advancement” for more legal protection of Europeans in the USA. If the US administration now follows up this declaration of intent with actions then this can most definitely be called a break-through – which can be largely attributed to the Justice Commissioner’s negotiating skills. In the joint statement both sides emphasised that this agreement would make data transfer easier regarding police and legal cooperation and ensure higher data protection for US and EU citizens. In this context it was agreed that prosecution authorities would also not be able to access personal data saved and stored by the respective other territory outside of legally authorised channels.

As stated by Ms Reding, this week has therefore at least seen movement in the transatlantic data protection issue. To what extent the implementation of a data protection skeleton agreement with Europe is genuinely a concern for the Americans remains to be seen. The EU would in any case be well advised to continuously evaluate during the course of the upcoming negotiations whether the USA actually turns this declaration of understanding into actions.

But against the backdrop of the struggle to find a new free trade agreement between the USA and the European Union and the intensity of other economic, political and cultural relations, hope exists that the announcement by the US administration for a quick and EU-pleasing solution is meant seriously. For Viviane Reding the current negotiation success is “a strong signal for the re-establishment of trust between both continents.”

Irrespective of this diplomatic show of strength, Europeans also have their own work to do at home concerning data protection. This involves the data protection reform, approved by the European Parliament about a month ago, being successfully passed through the European Parliament, Commission and Council and written into European law before the EU parliamentary elections in spring. Furthermore, in accordance with the objectives of the “Digital Agenda 2020” Europe must simultaneously forge ahead rapidly with building up its own secure infrastructures. Only this harmonisation of law and technology can strengthen Europe’s ICT trade position, heighten the economy and citizens’ trust in a continuous digital knowledge society and thus sustainably boost domestic demand.

There’s a lot to be done!