IAPP-GDPR Web Banners-300x250-FINAL
The Plain Truth About Safe Harbor

The stance adopted by the European Commission in the report on the functioning of Safe Harbor published today was probably one of the worst kept secrets of the privacy world. It was patently obvious to anyone close enough to the controversy around the ability of Safe Harbor to live up to the expectations of EU policymakers and regulators that the European Commission would be critical about it but would stop short of delivering a fatal blow to the scheme.

So as expected, the commission's report unequivocally reveals some deficiencies that are seen as unfair for both U.S. companies which properly apply the scheme and European companies that simply comply with EU data protection law. The toughest criticism is directed at the simple fact that, because the self-certification process does not involve any kind of regulatory scrutiny—compared, say, to the BCR authorisation process—about 10 percent of companies claiming to meet the Safe Harbor standards are actually making false claims. It is mainly the false claims issue that seems to impact on the credibility of the whole scheme.

This is based on the simple fact that those companies do not even have a privacy policy on their website—frankly, not a particularly difficult thing to do compared to some of the other EU-inspired privacy standards which are part of the Safe Harbor Privacy Principles. A more veiled criticism is directed to the enforcement mechanisms which are seen as a little too lame by the commission. This translates into a very simple commercial point: Where a European company competes with a U.S. company operating under Safe Harbor, but in practice not applying its principles, the European company is at a competitive disadvantage in relation to that U.S. company.

Interestingly, the commercial implications of this unfairness appear to be a greater concern than the potential vulnerability of Safe Harbor as a conduit to allow U.S. intelligence authorities to access data originating in the EU. In other words, the European Commission is not really seeking to turn Safe Harbor into a data bunker and seems content with the existing language which allows access to data "to the extent necessary" to meet national, security, public interest or law enforcement requirements. This does not mean that the tension between EU data protection and access to data by non-EU public authorities is resolved, but it takes this issue away from the Safe Harbor discussions.

All in all, the tone and content of the commission's position is fairly measured and reflects the ongoing dialogue between the EU and the U.S. around international data flows, adequate privacy safeguards and common democratic interests. In the short term, this means that Safe Harbor will survive pretty much unscathed. In the longer term, this may even be the beginning of real interoperability of privacy approaches.

photo credit: TPCOM via photopin cc

Written By

Eduardo Ustaran, CIPP/E


If you want to comment on this post, you need to login.


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»