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As the closing keynote at the Global Privacy Summit, the panel discussion hosted by IAPP VP of Research and Education Omer Tene was highly anticipated—and didn’t disappoint. In a too-brief 20 minutes, Article 29 Working Party Chairwoman and CNIL President Isabelle Falque-Pierrotin, UK Information Commissioner Christopher Graham and Dutch DPA Jacob Kohnstamm were largely civil but definitely sparred over ideas central to European data protection regulation reform and its impact on the U.S. and the global economy.

The big topics? The future of Safe Harbor; whether we will see a “one-stop shop” as part of the new regulation in Europe; differing philosophies on collection and use, and whether a “risk-based” approach to regulation is more appropriate than a heavily proscribed set of rules for data handling.

Falque-Pierrotin, recently elected as chair of the Article 29 Working Party, perhaps reset the tone for the discussion by pulling back midway to look at the big picture: “We’ve met with all the DPAs [this week], White House officials, the Congress and somehow I had the impression—and I hope it’s a false impression—that the consumer interests, the individual’s choice was a little bit being forgotten, in front of the complexity of the Big Data.

If we can’t find a solution on this issue, where national and nationalists’ feelings are also involved, we won’t get the regulation done.

Dutch DPA Jacob Kohnstamm

“People say, ‘the guy can’t understand. It’s difficult to make clear choice,’ but I think we need to fight against this. What makes privacy protection is to find the fine line between the interests of the industry and the interest of the consumers and creating confidence and trust. And we try to do this in Europe, and I’m sure we’ll succeed.”

But will the EU and U.S. find a middle ground and save Safe Harbor, for example?

“There’s one point that I want to stress,” said Kohnstamm. “There’s a big difference between the U.S. and EU, and that’s collection vs. use. Collection as such is also within the fundamental right of data projection, something that has limits. Not only when it is used, when it is collected. I think we should think of building bridges on especially this point.”

He pointed to Facebook’s acquisition of What’s App as a prime example of the dangers of ignoring collection. Can Facebook now use all of What's App's data as though they, themselves, collected it?

But these differences aren’t really the reason Safe Harbor is such a hot button right now, Kohnstamm acknowledged: “Let’s be clear. Snowden came in as a bomb … You can’t just look at Safe Harbor without taking into account the loss of trust between Europe and the U.S. … One point is of utmost importance: Equal treatment of U.S. and EU citizens should be the goal. We don’t like being treated as North Koreans. Safe Harbor is dead if that can’t be fixed.”

We’ve met with all the DPAs [this week], White House officials, the Congress, and somehow I had the impression—and I hope it’s a false impression—that the consumer interests, the individual’s choice was a little bit being forgotten, in front of the complexity of the Big Data.

Article 29 Working Party Chairwoman and CNIL President Isabelle Falque-Pierrotin

Tene challenged Kohnstamm on this point, however, noting the EU data protection directive doesn’t currently even apply to government entities. “Who do you call in your own country when you have this issue” of government access to data? Tene asked.

“We call the NSA,” Kohnstamm joked. “They know more than we do.”

While that got a good laugh, the UK’s Graham took a stab at speaking to the importance of the Snowden revelations. “We can’t stand idly by and see the revelation that was reported about encryption being compromised with the back door left open. That’s a clear consumer issue that DPAs have to address. Never mind exemption for national security. There has to be democratic oversight,” he said.

“If I’m telling people to use encryption,” Graham continued, “and, oh, excuse me, all this time encryption was for the birds, well, if it was, then we’re bound to look very badly on developments like that.”

“Do you regulate GCHQ?” Tene fired back.

“I’m just asking for answers to fundamental questions about regulating citizens,” Graham countered.

Falque-Pierrotin allowed that the hands of European governments are hardly completely without dirt. “Inside of Europe itself, this has sparked debate. We all just realized, oh, are we also under surveillance … We need to express our view on this surveillance society, and the role of the DPA is to express an opinion and say under what condition these are acceptable.”

“The question is the right one,” Kohnstamm agreed. “There’s a Snowden for the U.S., but I think it would help if there were a couple of Snowdens in Europe as well. To make the discussion more equal.”

This earned a round of applause.

The One-Stop Shop and a Risk-Based Approach Debated

When discussion turned to the specifics of the EU regulation being debated in the EU right now, with a vote in Parliament scheduled for March 12, there were clearly two main points of debate:

Will there be a “one-stop shop,” whereby companies will have only one data protection authority with which to deal in Europe?

We can’t stand idly by and see the revelation that was reported about encryption being compromised with the back door left open. That’s a clear consumer issue that DPAs have to address. Never mind exemption for national security.

UK Information Commissioner Christopher Graham

Will there be a move toward a more “risk-based approach,” rather than a set of very proscribed ways in which data must be collected and handled?

Graham clearly is advocating for both things to come to pass. Companies and organizations ought to be praised for figuring out their own ways to adhere to the principles of good privacy, he said. “We’re interested in the outcomes. You work out the way to salvation. And very effective DPAs will be on your case if you fall from grace,” he said. “If you have every company checking boxes on a list, the DPAs won’t be able to lift their sights from the process in order to go after the bad actors.”

He advocates a partnership along the lines of the code of practice on PIAs his office published in the UK.

Falque-Pierrotin isn’t so sure. “It can appear to be a very technical issue,” she said. “Who is responsible? But on the other hand it’s very symbolic and political. What we are discussing is the kind of relationship that will exist between the DPA and the business on one side and the consumers and government on the other side.”

While she understands the efficiency of a one-stop shop where businesses only have to work with a single DPA, she said “it’s natural for data subjects to see redress with their own national DPA. It’s a question of constitutional and fundamental rights.”

Perhaps there’s a balance, she said, where the one-stop shop helps the DPAs organize themselves, but citizens still have an option to appeal to their local authority. “It not so easy to explain,” she aid, “but we want to combine the two objectives.”

“But will you get different rules?” Graham countered. “We have to work on the details. It sounds like a one-stop shop with a branch in every town.”

“We’re in the midst of finding a good answer,” Kohnstamm said. “The main problem is that you can’t have a Polish guy who wants to go against Phillips, but the Dutch DPA will lead on Philips, and then the Polish guy has to write in Dutch to my office? No, that’s not a solution.

“So we need to work on it,” he continued. “If we can’t find a solution on this issue, where national and nationalists’ feelings are also involved, we won’t get the regulation done.”

Written By

Sam Pfeifle

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