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

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 privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

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 a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

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.

The Privacy Core™ Library Has Evolved

Privacy Core™ e-learning essentials just expanded to include seven new units for marketers. Keep your data safe and your staff in the know!

Online Privacy Training

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

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.

Let’s Get You DPO Ready

There’s no better time to train than right now! We have all the resources you need to meet the challenges of the GDPR.

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

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.


The IAPP’S CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for DPO readiness. Learn more today.

Learn more about IAPP certification »

Are You Ready for the GDPR?

Check out the IAPP's EU Data Protection Reform page for all the tools and resources you need.

IAPP-OneTrust PIA Platform

New U.S. Government Agency privacy impact assessments - free to IAPP members!

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

Privacy Vendor List

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

More Resources »

Europe Data Protection Intensive 2017

The Intensive is sold out! But cancellations do happen—so hurry and get on the wait list in case more seats become available.

Global Privacy Summit 2017

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities.

Canada Privacy Symposium 2017

The Symposium returns to Toronto this spring and registration has opened! Take advantage of Early Bird rates and join your fellow privacy pros for another stellar program.

The Privacy Bar Section Forum 2017

The Privacy Bar Section Forum returns to Washington, DC April 21, delivering renowned keynote speakers and a distinguished panel of legal and privacy experts.

Asia Privacy Forum 2017

The Forum returns to Singapore for exclusive networking and intensive education on data protection trends and challenges in the Asia Pacific region. Call for Speakers open!

Privacy. Security. Risk. 2017

This year, we're bringing P.S.R. to San Diego. The Call for Speakers is now open. Submit today and be a part of something big! Submission deadline: February 26.

Europe Data Protection Congress 2017

European policy debate, multi-level strategic thinking and thought-provoking discussion. The Call for Speakers is open until March 19.

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»