The Impact of PRISM on International Data Flows

An exasperatingly awkward challenge affecting the current data globalisation process is the prohibition on exports of data that is present in a number of the world's data privacy laws.  This is something that European organisations have had to live with since the mid-90s, and frustratingly, the trend is being extended to other jurisdictions. Disregarding the reality of Internet and mobile communications, some policy-makers and regulators insist on building some sort of physical or at least digital fortress around the data within their jurisdiction with the aim of preventing unwanted interferences. In the most extreme cases, international data flows are only allowed under the express authorisation of a national regulator that will seek to scrutinise the safeguards in place to the finest detail.

The current data protection legislative reform taking place in Europe is an opportunity to revisit this approach in the light of what actually happens in practice: Data is no longer transferred from country A to country B—data is geographically neutral and simply flows across global networks to make itself available to those with access to it. Sometimes access will be deliberately wide—think LinkedIn—and sometimes access will be deliberately restricted—think credit card transactions. So the debate between those who think that inadequately protected data flows should be prohibited by default and those who favour a more pragmatic approach is right now at full throttle.

Enter PRISM, and the whole debate is massively distorted.

The knee-jerk reactions were to be expected. From the activist calling for the immediate revocation of the Safe Harbor framework to the politicians grandstanding in front of their constituents, furious arguments are being made in the name of privacy. More concerning, however, are the long-term effects of the revelations about a program which irrespective of its motives has already been portrayed as excessive, disproportionate and, for obvious reasons, secretive. Even level-headed EU policy-makers are now likely to pause and consider whether any specific legislative or regulatory measures should be taken to minimise the potential loss of privacy that a wholesale data collection operation—particularly by a non-EU entity or indeed a government—may entail.

In practice that means a definite tilting of the scale towards greater restrictions on international data flows. For starters, the recent and possibly further revelations about the PRISM program will make it very difficult to justify getting rid of the special treatment of international data transfers as a separate data processing activity. Quite the opposite, this will be explicitly referred to as a key reason for having jurisdictional limitations on data flows, no matter how nonsensical those limitations may otherwise be. In line with this, obtaining a so-called “adequacy decision”—an official EU-wide declaration stating that a country is a safe recipient of personal data—is set to become a rather tough process, which is a shame considering that in recent years there has been a slight—but only slight!—relaxation of the process. It is also quite conceivable that if the European Commission decides to have a go at seeking a renegotiation of Safe Harbor, this will be cited as a justification. Having said that, it will be somewhat unfair that a data collection and analysis program which is entirely motivated by national security reasons causes a raising of the bar for organisations which are completely outside the scope of the program.

Things will not end there.

Both contractual safeguards and binding corporate rules will be expected to address possible conflicts of law involving data requests for law enforcement or national security reasons in a way that no blanket disclosures are allowed. And of course, the derogations from the prohibition on transfers will be narrowly interpreted, particularly when they refer to transfers that are necessary on grounds of public interest.

All in all, it is going to take a fair amount of convincing to show that any restrictions on international data flows should be both measured and realistic. But it is also true that in the same way that we cannot stop the technological evolution of our time and the increasing value of data, we must acknowledge the borderless fluidity of digital information and accept that regulating data flows should not be about putting up barriers but about applying globally recognised safeguards.

photo credit: Florian de Brün via photopin cc

Written By

Eduardo Ustaran, CIPP/E


If you want to comment on this post, you need to login.
  • Dan Or-Hof Jun 12, 2013

    Very interesting. Thanks for sharing. No doubt there is a need for global harmonization.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Advertise in IAPP Publications

Find out how to get your message in front the people you want to reach. Download a media kit now.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Registration Open

New! Intensive two-day GDPR training led by the sharpest minds in the field. It's a can't-miss event.

The Congress Is Cancelled

The IAPP Europe Data Protection Congress 2015 is cancelled. Click through to learn more.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»