EC Official: Privacy Harbor Won't Mean Safety From Challenges

There was optimism on both sides Monday that the U.S. and European Commission will come up with a new safe harbor ("safe harbor 2.0") for protecting European data flows to the U.S. as the deadline nears, but a European Commission representative warned that would likely not be the end of the story.

That came at the Internet Education Foundation State of the Net conference in Washington, where snow rearranged the program.

The U.S. and EC have a Jan. 31 deadline for coming up with a new framework before data protection actions can be brought after a European Union court in October invalidated the current safe harbor in the wake of Edward Snowden's revelations about U.S. government surveillance.

Before flying out for more negotiations, Justin Antonipillai, deputy general counsel of the Department of Commerce and a leading figure in the negotiations, suggested the deadline was actually going to be Feb. 2 given that Jan. 31 was a Sunday and there were working party meetings set for Feb. 2.

Antonipillai agreed that time was not on their side as the clock ticked down, but that they had been having productive dialogue.

He said that the court decision annulling the safe harbor framework did not say that U.S. companies were not protecting European's data. That was seconded by Bijan Madhani of the Computer and Communications Industry Association.

Andrea Glorioso, representing the European Commission, warned that when--he said he was going to say "when," not "if"--a new safe harbor agreement was struck, that was not the end of the process. He said that it still had to be voted on by members countries and run by the EU Parliament for its input, and he had already heard from civil liberty groups that they were preparing a challenge to whatever the final product is.

He said the bottom line is that the EC wanted to make sure it was a solid framework that could resist those challenges, which is why he said it was not in anyone's interest to rush the agreement only to have it struck down in a few months.

Glorioso would not characterize the negotiations beyond saying the were happening daily. He suggested that the new harbor would need a trust but verify approach. He said the EC takes at face value what the U.S. says, but that it also needs more clarity, "if at all possible," about how the U.S. will protect information going forward.

The U.S. and EC have been working on a new framework for two years, prompted by the Snowden revelations, but the EC court decision in October has put them on the clock to get a deal done.

Madhani said he was optimistic that there would be an agreement by Feb. 2.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.