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EC MEPs Respond to Gag Orders

The European Commission has started imposing gag orders on its MEPs and barring journalist access to discussions at the parliament’s civil liberties committee. This is not new, but is still a rare occurrence at the LIBE committee (Civil Liberties, Justice and Home Affairs Committee). A commission-imposed clampdown happens whenever an official is asked to speak about ongoing negotiations with American authorities on the transfer of personal data of EU citizens through the Safe Harbor agreement.

Far-left German MEP Cornelia Ernst and Dutch liberal Sophie In’t Veld voted to suspend the so-called in-camera session at the Safe Harbor session last week, prompting a minor protest. It’s important to note that in-camera sessions are not open to the public. MEPs are under threat of sanctions should they discuss the issue outside of the room.

Both Ernst and In’t Veld were outvoted by the other 15 MEPs present, as both center-left and center-right committee members voted to keep the meeting secret. According to British center-left MEP Claude Moraes, responsible for heading up the civil liberties committee, he plans to organize meetings with coordinators to talk about how best to deal with in-camera sessions.

Although the LIBE Committee does not have the authority to draft new rules, it is able to decide on best practices within the limits provided by the rules. An internal parliament document on in-camera meetings notes that coordinators may request Moraes – prior to the meeting – to provide an explanation as to why a certain item should be held in-camera.

The document also notes that “any citizen of the Union, and any natural or legal person residing or having its registered office in a member state” is permitted to request an in-camera session to be recorded. The recording is considered a document which anyone can request access.

According to In’t Veld, the issue extends beyond the parliament, its rules and the committee. “I spoke to [European Commission vice-president Frans] Timmermans, I bumped into him a couple of days ago and asked him about this and he didn’t seem to be terribly aware of the whole thing. Actually, he wasn’t aware of the whole transparency regulation to begin with,” she commented.

The dissenting MEPs argue that the session where the protest vote was held did not reveal anything of substance on this issue. They believe that absolutely nothing justifies the in-camera session.

Viability of the Safe Harbor Agreement

The Safe Harbor data law is enforced by the US Federal Trade Commission. It is meant to ensure that US firms follow EU data protection laws when processing the personal data of EU citizens. Last November, the former EU justice commissioner, Viviane Reding, published a list of recommendations for Americans to implement in order to keep the agreement relevant and viable.

Since then, it has been revealed that Washington has taken issue with three of the thirteen recommendations. In particular, American officials don’t agree with the commission’s proposal to require companies to publish the privacy conditions of any contract they conclude with subcontractors.

They also have problems with “ex officio investigations,” which are used to screen compliance through random checks.

However, the most significant issue is the commission’s recommendations on law enforcement access and national security exceptions, due in part to the limited role of the US commerce department to negotiate on the issues.

Safe Harbor/Patriot Act Issues

Law enforcement access raises other issues as well. Under the US Patriot Act, companies are banned from notifying the data subject or the data protection authority in Europe should US authorities request access to the personal details of EU nationals. According to corporate lawyer and data expert Ann La France, “It puts American companies in this Safe Harbor context between a rock and a hard place.”

There have been six in-camera sessions on Safe Harbor in the committee since July. The secret briefings have been occurring for the past couple of years, but saw a steady increase after the Guardian newspaper revealed that the American spy agency NSA was conducting indiscriminate and mass surveillance on EU citizens. As a whole, the LIBE committee has never refused an in-camera session.

Summary

The European Commission has been accused of barring journalist access to discussions at the LIBE committee whenever US data issues are on the table. In-camera sessions are not open to the public and places MEPs under the threat of sanctions should they discuss the issue outside the room. The latest in-camera session took place on December 11, 2014 and led to a minor protest at the Safe Harbor session.

CIPP Exam Preparation                                      

In preparation for the Certified Information Privacy Professional/Europe (CIPP/E) exam, a privacy professional should be comfortable with topics related to this post, including:

  • European Commission (I.B.d.)
  • International data transfers – Safe Harbor (II.I.c.)
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