No Euro-vision as UK defies Brussels over anti-Safe Harbor demands

This weekend is the Eurovision Song Contest. Started over 50 years ago as a project by the then newly formed European Broadcasting Union, Eurovision is intended as a celebration of post-World War II European unity and the coming together of a commonwealth of nations through the medium of song.

In reality, it’s a jingoistic bun-fight that exposes all the national prejudices and predilections across the continent, with politically-motivated bloc voting taking place based on long-standing alliances.

Greece will always give Cyprus twelve points, for example, while Norway, Sweden and Denmark have a nice thing going on. Meanwhile the former Eastern Bloc countries seldom stray far from one another or the old Soviet mothership (although events in Ukraine may lead to some interesting choices for those nations who would automatically vote for Russia!).

In all of this, as in so many matters relating to Europe, Le Royaume Uni (that's Eurovision-speak for United Kingdom) stands slightly askance, gently mocking foreigners on the one night of the year when xenophobia is tolerated so long as it’s directed at a big ballad with lots of drums, a smoke machine and the all-important key change two thirds of the way in.

(We never win BTW. We used to do pretty well, but now we just pay millions to enable our EU neighbours to give us nil points).

The reason I’m rambling on about this is (a) a desperate attempt at topicality and (b) that ‘UK askance’ factor came to mind when reading the outcome of a hearing by the British parliamentary upper chamber House of Lords European Union Committee into the future of the Safe Harbor agreement with the US.

Across in Brussels, Safe Harbor’s future has been called into question with the likes of Justice Commissioner Vivian Reding openly questioning whether it is in fact safe at all and demanding radical changes to the nature of US data protection and data sovereignty regulations.

See also: Europe's Thanksgiving gift to the US - a list of demands
Nov 28 2013diginomica.com

Away from Reding’s political grandstanding, late last year the European Commission issued two formal communications relating to Safe Harbor: ‘Rebuilding Trust in EU-US Data Flows’ and 'The Functioning of the Safe Harbour from the Perspective of EU Citizens and Companies Established in the EU’.

In these, the Commission laid down 13 demands, most of which are unlikely to go down well in Washington and which were tactlessly unveiled over Thanksgiving last November! The US government has said it will respond to this ‘tick-list’ by summer this year.

A measured response

In March this year, the European Union Committee heard evidence from expert witnesses, including Professor Charles Raab, University of Edinburgh, privacy campaigner Chris Connolly, Phil Lee, Privacy and Information Law Group, Field Fisher Waterhouse LLP, David Smith, Deputy Commissioner at the UK Information Commissioner’s Office (ICO),and Caspar Bowden, independent privacy expert and former Chief Privacy Adviser for Microsoft Europe.

Their views have been taken into consideration and this week the Committee published its conclusions and recommendations in the form of a letter to the UK government Ministry of Justice - and frankly the more hardline elements in Brussels aren’t going to like much of what it says, with a top-line conclusion of:

We recognise that, despite some weaknesses, the Safe Harbor arrangements offer clear benefits to citizens and businesses on both sides of the Atlantic.

And it’s having nothing to do with the shrieking cries to kill Safe Harbor now:

We are not persuaded of the case for suspension at the present time and endorse the Commission’s decision not to give effect to the European Parliament’s recommendation that Safe Harbor be immediately suspended.

In fact, the UK wants the European Commission to beef up the profile of Safe Harbor as it stands in order to make sure that citizens across Europe are fully educated about it.

The UK ICO has said that Safe Harbor is something laid down at European level and as such it can only intervene if the rules are breached. It insists that it is not appropriate for it to pass judgement over whether Safe Harbor is adequate.

The Committee isn’t happy with that notion and tells the ICO to go and have another think about it. It also wants to know what the ICO is doing to check the rules are not being broken:

We invite the ICO to tell us what efforts it makes to ensure US companies operating in the UK claiming adherence to safe harbour do in fact comply with the scheme, and to consider whether this work could be strengthened.

Another key recommendation relates to the current self-certification regime under which Safe Harbor operates. This ‘marking your own homework’ isn’t acceptable, suggests the Committee:

It is clear that a more credible compliance and audit regime, not simply driven by complaints, needs to be established. We recommend that the Commission and the Government take further steps to achieve this.

We recommend that the Commission and US authorities commit to producing a regular evaluation of the implementation of the safe harbour Decision, similar to the reports produced concerning transfer of Passenger Name Records and the Terrorist Finance Tracking Programme.

The Snowden elephant

The elephant in the room of course is Edward Snowden and the NSA PRISM spying program revelations that have provided so much fuel to the wider political ambitions of some in Brussels.

While some European countries have taken a particularly hardline stance on this, the UK’s keeping feet in both camps:

The Commission’s attempts to secure US agreement to an approach towards use of national security concerns as a reason to access data transferred under safe harbour based on necessity, proportionality and targeting seem reasonable.

At the same time, however, we recognise that security concerns are part of a broader conversation between the EU and the US on data protection and the digital single market.

The UK takes a firm line though on the idea that the EU’s position should take priority over national security interests and wants the Commission to back off. Again the Committee tries to play both sides:

We note and share the Government’s view that national security remains a national responsibility and that European institutions have no competence in these areas.

That said, there are many issues related to the need for a balance between privacy and security under negotiation at EU level.

It would be in the UK’s interests to conduct a dialogue on these issues with the European institutions, including the European Parliament, and other Member States to ensure that its position is understood. We do not consider that conducting such a dialogue would compromise the position over competence.

Verdict

Not exactly a douze points response from the UK, but a damn sight better than the nil points posturing that came out of Brussels last November.

The outright rejection of the farcical proposed escalation of tensions that would result from unilaterally suspending Safe Harbor in its present form is very welcome, although it will simply harden the opinion of the likes of Reding who's already said that she's used to not counting on the UK for support.

But at the end of the day, the response from the House of Lords Committee can be summed up as ‘Let’s not do anything hasty and wait to see what the Yanks come up with in the summer’.

That’s sound enough advice. But the problem, as we’ve noted before, is that time is slipping away for some of the shrillest voices demanding reform, with the current batch of commissioners out of office come September.

Politicians with an agenda who are running out of time don’t always make for the most considered decision-making.