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Safe Harbor: are Europeans going to be sold down the Potomac?

Posted by on January 30, 2016.

Safe Harbor is dead. Long live Safe Harbor – or at least Safe Harbor II. That’s what Brussels and Washington are working on; and they need to get it done by tomorrow.

Tomorrow (31 January 2016) is the deadline given by the European data protection regulators for the politicians to sort it all out. From Monday the implication is that Europe will start enforcing the European Data Protection laws on US companies that have suddenly found themselves unprotected by Safe Harbor.

It is, of course, all a great big con. Safe Harbor won’t be fixed by the deadline, and the regulators won’t enforce the law. There will be a Safe Harbor II, probably early in February, but it will be designed to save the face of politicians and protect the business of big American companies. The one thing it won’t do is protect European data from the NSA, nor will it abide by the European constitution.

Here’s an example. A headline from 21 January 2016: European data privacy bill delayed in Senate. The Senate simply delayed voting on the Judicial Redress Act, and an article The Hill commented,

The bill would give citizens from approved EU countries the right to enforce their data protection rights in U.S. courts and is seen as critical to securing a new Safe Harbor agreement. When the European high court struck down the original framework last fall, it specifically cited a lack of redress for EU citizens whose data is mishandled in the U.S.

But redress is not prevention. Redress alone does nothing to prevent the US mishandling of European data. That would require a different type of legislation, one that tells American companies that they cannot simply hand over European data to three-letter US agencies. Don’t hold your breath.

The way things are, you will never know if your data and business plans have gone from your cloud provider via the CIA to a US competitor. You will never know because your cloud provider won’t be allowed to tell you. You might wake up one morning in an orange jumpsuit on an island off America; but you won’t necessarily know why. Of course it’s a mistake and of course you can get judicial redress – but good luck with that. How do you get redress for something you didn’t know happened?

Judicial redress is a red herring. It is being sold as something important when it’s actually the least important part of the whole process. Once again the politicians are selling our privacy down the Potomac for a barge full of trade.

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