A recent opinion handed down by Yves Bot, Advocate General of the European Court of Justice, may jeopardize the US-EU Safe Harbor agreement. The deal provides the framework for companies like Facebook and Google to transfer data between European and American servers without being in violation of privacy protection laws. Bot argues that the agreement does not do enough to protect the data of EU citizens when it reaches America, and for that reason it should be suspended. His opinion is not legally binding, but the court tends to follow the advice of the Advocate General when making its rulings.
The case the court is considering is a complaint by Austrian law student Max Schrems against Facebook. He argues that Facebook was helping the NSA harvest private data, by forwarding users' data to US servers, a claim which was publicly denied by a Facebook spokesman. Initially a complaint was filed with Irish Data Protection Commissioner, because Facebook's European operations are headquartered in Ireland. The commissioner reject the complaint on the grounds that such data transfers are in line with the Safe Harbor Framework.
Schrems appealed to the European Court of Justice, and now the Advocate General is arguing in his favor. Bot stated that it was apparent that, "The law and practice of the United States allow the large-scale collection of the personal data of citizens of the EU which is transferred, without those citizens benefiting from effective judicial protection." Herwig Hofmann, a lawyer for Schrems was pleased with the Advocate General's opinion and told reporters, "If the United States doesn't change its laws in order to guarantee a minimum of data protection to European citizens, U.S. companies will have to process their data in the EU."
However, others are not so pleased at the prospect that the US-EU Safe Harbor deal could be overturned by the court. John Higgins, Director General of DIGITALEUROPE, whose members include Apple, Cisco, Ericsson and Google, stated that, "We are concerned about the potential disruption to international data flows if the Court follows today's opinion." Many tech companies rely on the deal in order to easily transfer payroll and human resources data, as well as data used in online advertising. If the deal is brought to an end, it could have a devastating effect on many large tech companies, and would be yet another negative consequence brought about the NSA mass surveillance program.
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