IAPP-GDPR Web Banners-300x250-FINAL
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


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»