The Questionable Legality and Practicality of the EU’s Proposed “Anti-FISA” Clause

As it has been noted on these pages one of the tangible results of the Snowden revelations has been the (re)introduction of a provision in the EU’s proposed General Data Protection Regulation aiming to limit and control the transfer of personal data to authorities in third countries, the main concern motivating this initiative clearly being concerns regarding the transfer of personal data to U.S. intelligence and law enforcement authorities.

Originally, the European Commission had intended for such a provision to be included in Article 42 of the data protection reform proposal tabled in January 2012, but—if one chooses to believe the many press reports one the matter—due to intense lobbying pressure from the U.S. government, the provision was removed. That is, of course, not the full picture. The full reason why what has now come to be known as the “Anti-FISA” provision was removed is a bit more nuanced and complex, and in order to uncover it, a brief accounting of the legal issues is necessary.

The central points of Article 43a as proposed by the European Parliament’s LIBE Committee are Paragraphs 1 and 2, which states:

1. No judgment of a court or tribunal and no decision of an administrative authority of a third country requiring a controller or processor to disclose personal data shall be recognized or be enforceable in any manner, without prejudice to a mutual legal assistance treaty or an international agreement in force between the requesting third country and the union or a member state.   

2. Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer or disclosure by the supervisory authority.

Firstly, as Christopher Wolf rightly has also pointed out, the overall scope of the provision is unclear. But the issues raised by the proposal are numerous; e.g., does the word “judgment” also cover court orders, subpoenas, letters of requests, letters rogatory, etc.? And what constitutes an “international agreement” for the purposes of the provision?

Furthermore, Article 43a, Paragraph 1, must be read as a ban on any transfer not based on a mutual legal assistance treaty or an international agreement, while Paragraph 2 seems to require that any—treaty or agreement-based—transfer be notified to and authorized by the competent DPA.

But if no transfer can take place without a treaty or international agreement what, for example, will be the status of requests for the taking of evidence in civil matters from states not party to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, ratified by 57 states? Such request will, of course, often involve the transfer of personal data regarding witnesses, parties, etc.

But even when a legal agreement exists, the provision is bound to create legal conflicts. One key example—which will also be of great concern to EU member state authorities—is how the requirement of data protection authority (DPA) authorization in Paragraph 2 can be reconciled with the requirements of the agreement on mutual legal assistance between the European Union and the U.S. Article 9 (2)(b) in this agreement precludes the requested state from imposing “generic restrictions with respect to … processing personal data … as a condition to providing evidence or information.” In other words, even if the DPA has the time, resources and insight necessary to assess the privacy specific issues which a given request for assistance in a criminal investigation or prosecution gives rise to, the DPA would in most cases be precluded from imposing requirements motivated by data protection concerns on the authorities in the third state as a condition for allowing the transfer to take place.

Continuing on this note, one has to make the observation that requiring the national DPAs to systematically assess and authorize all cases where a disclosure of personal data takes place under the proposed Article 43a—including “whether the disclosure is necessary and legally required” cf. Paragraph 3—would likely bring international cooperation in criminal and civil matters between the EU and the rest of the world almost to a grinding halt. But it would also be bound to overburden the DPAs and divert their resources from other matters.

Thus, this single provision encapsulates the fundamental flaw of the one-size-fits-all approach to data protection, which hobbles the proposed regulation and undermines its central objective of harmonizing EU law across both the public and private sectors: Trying to harmonize—and thereby regulate all processing of personal data—in one single legal act very easily becomes a Sisyphean task giving rise to untold issues and conflicts and subsequent calls for derogations, exceptions and stipulations.

Written By

Christian Wiese Svanberg


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