Fifteen years late, Safe Harbor hits the rocks

By EDRi · October 6, 2015

Today, the Court of Justice of the European Union (CJEU) confirmed what the European Commission has been denying for the past fifteen years – the “Safe Harbor” agreement on transferring data to the United States is invalid.

“Safe Harbor was flawed in principle and flawed in practice” said Joe McNamee, Executive Director of European Digital Rights. “After last year’s data retention ruling, this is the second time in two years that the Court of Justice has struck down an instrument that the European Commission had spent years defending.”

The case was precipitated by revelations of mass surveillance in the United States, which led to the discovery of the National Security Agency’s abuse of both the judicial (“systematic misleading of judges”) and legislative (“unbounded interpretation of the [Patriot ] act that Congress never intended“) arms of the United States Government. While the US Mission to the EU has now confirmed that there is, apparently, “no mass surveillance of anyone“, there are some who may be sceptical.

In reality, however, the case is much deeper than “just” mass surveillance. The European Commission has never had the political courage to recognise that Safe Harbor was never safe. Even before the Snowden revelations, reports from the Commission itself and from independent research showed over and over again that the entire framework was inadequate. The European Commission and the businesses that used Safe Harbor to export data to the United States hoped that the open secret would remain a secret. Businesses that were using Safe Harbor could have done more than hope that a case would never be brought to the Court, businesses could have done more than pluck absurd numbers out of thin air as to the cost of abandoning this unsustainable agreement. Their choice was to take the risk that this unsustainable agreement could be sustained. They were wrong.

Read more:

Press release from the Court of Justice of the European Union (06.10.2015)

Safe Harbor: European Court Advocate General says Agreement should be declared invalid (23.09.2015)

Revelations on Safe Harbour violations go to hearing at EU Court (11.03.2015)

Finally! Safe Harbour Agreement under question by EU commissioner (31.07.2013)