The EDPS' opinion on the US-EU data exchange agreement

By EDRi · November 19, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

On 11 November 2008, Peter Hustinx, the European Union’s Data Protection
Supervisor, gave some comments to the report published on 26 June 2008 by
EU-US High Level Contact Group (HLCG) on information sharing between US-EU
on privacy and personal data protection.

According to Hustinx, a greater sharing of personal data between the
European Union and the US should be accompanied by guarantees that the
individuals whose data are exchanged may examine the exchange process and
correct eventual mistakes. He believes that US and EU should be allowed to
share individual personal data in criminal cases, only if people can take
the authorities to court when they are wronged. “Strong redress mechanisms,
including administrative and judicial remedies, should be available to all
individuals, irrespective of their nationality,” says the EDPS.

With this position, he agrees with the EU request for the right to take the
authorities to court regardless of nationality of the person whose data is
processed, something that the US did not agree with. Currently, the US
Privacy Act says that only US citizens and legal permanent residents can sue
the authorities and only after having exhausted all direct actions with the
government agencies before going to court.

The EDPS thinks that in the context in which the transatlantic exchange of
information will continue to grow and include other additional sectors where
personal data are being processed, “a dialogue on ‘transatlantic law
enforcement’ is at the same time welcome and sensitive. It is welcome in the
sense that it could give a clearer framework to the exchanges of data that
are or will be taking place. It is also sensitive since such a framework
could legitimise massive data transfers in a field – law enforcement – where
the impact on individuals is particularly serious, and where strict and
reliable safeguards and guarantees are all the more needed.”

Hustinx also wants more interest groups to be involved in the discussion
between the interested parties as well as a greater involvement of the
European Parliament. He believes transparency is necessary during the future
debates as until now HLCG has been working behind closed doors.

He expressed his concern related to the increasing demands for international
transfers of data from private companies and third parties. “It appears from
this context that the request of enforcement authorities of third countries
for personal information is constantly widening, and that it also extends
from traditional government data bases to other types of files, in
particular files of data collected by the private sector.
As an important background element, the EDPS also recalls that the issue of
transfer of personal data to third countries in the framework of police and
judicial cooperation in criminal matters is addressed in the Council
Framework Decision on the protection of personal data processed in the
framework of police and judicial cooperation in criminal matters4 that is
likely to be adopted before the end of 2008.”

Hustinx’s office said the report should lay at the basis of a road map
towards a legally binding agreement, in a process that should not be hasty.

Opinion of the European Data Protection Supervisor on the Final Report by
the EU-US High Level Contact Group on information sharing and privacy and
personal data protection (11.11.2008)

EU Data Protection Supervisor seeks a roadmap for transatlantic data
protection (14.11.2008)

EU privacy regulator says US must agree to data swap court action