IAPP_GPS17_CFP_300x250_v1

PrivacyTraining_ad300x250.Promo1-01
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

Comments

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

Related

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

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with other privacy pros, dive deep into a specialized topic or simply share a common interest, IAPP Communities are for you.

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.

We Need You! Call for Volunteers Opens Soon!

Advisory Board Leaders and KnowledgeNet Chapter Chairs call for volunteers opens Oct. 5. Don't miss out on your chance to lead!

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.

NEW! Raise Staff Awareness

Equip all your data-handling staff to reduce privacy risk, with Privacy Core™ e-learning essentials.

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.

Upcoming Web Conferences

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

Train Your Team

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

NEW! FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

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 »

IAPP-OneTrust PIA Platform

Simplify privacy impact assessments with this cloud-based customizable platform - free to IAPP members!

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

NEW! Raise Staff Awareness

Equip all your data-handling staff to reduce privacy risk, with Privacy Core™ e-learning essentials.

IAPP Communities

Meet locally with other privacy pros, dive deep into a specialized topic or simply share a common interest, IAPP Communities are for you.

More Resources »

Time to Get to Work at the Congress

Thought leadership, a thriving community and unrivaled education...the Congress prepares you for the challenges ahead. Register today.

GDPR Comprehensive London

Our third and final GDPR Comprehensive 2016 was a great success. London delegates spent two full days with world-recognized experts taking a guided tour of the GDPR.

Call for Speakers at Summit 2017

Are you an engaging speaker with privacy expertise to share? We want you! Submit a proposal today! The Call for Speakers closes Oct. 2, 2016.

GDPR's Top Impacts - Webcon Delivered in French

Rejoignez des experts pour en savoir plus : Les 10 conséquences pratiques les plus importantes du RGPD. S’inscrire maintenant.

Intensive Education at the Practical Privacy Series

The Series is returning to DC, this year spotlighting Data Breach, FTC and Consumer Privacy, GDPR and Government privacy issues. It’s the education you need now!

Sponsor an Event

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

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»