back to article So. Are Europeans just a whining bunch of data protection hypocrites?

Does this week’s Safe Harbour 2.0 restore confidence in US-European data flows - or does it change absolutely nothing? Either way, the European Court needs to produce better argued and more robust judgements, reckons one of the UK’s top data protection experts, Dr Ian Walden, a Professor of Information and Communications Law at …

  1. Fibbles

    Why exactly does Europe have to cower at the thought of a trade war with the US? They're both similarly sized economies with a lot of mutual trade. Neither side seems to have the upper hand in that regard.

    1. Kurt Meyer

      @Fibbles

      I've not heard of anyone in favor of a trade war, I don't think it will come to that, but if it does, I don't see the Europeans cowering.

      It seems to me, however, that your statement "similarly sized economies" is misleading. On the one hand, a single large economy. On the other hand, an aggregation of 28 individual economies with a very broad variance in performance.

      It's a long way (figuratively speaking) from Germany, topping the table, to Greece, mired in the relegation places.

      There is also, and always, the question of political unity among the nations of the EU. Will they all row together? Their record is certainly mixed on that score.

      1. Fibbles

        Re: @Fibbles

        As far as I'm aware, trade tariffs in Europe are implemented by the bloc rather than individual countries. The fact that Germany's economy is much larger than Greece's is no more relevant than the fact that California's economy is much larger than Nebraska's.

        1. Kurt Meyer

          Re: @Fibbles

          I think you're correct in saying it is the EU which implements tariffs, rather than its individual members. Do these union wide agreements not require a unanimous vote among the member states? I believe that they do.

          "The fact that Germany's economy is much larger than Greece's is no more relevant than the fact that California's economy is much larger than Nebraska's."

          Here I believe you are incorrect. Neither California, nor Nebraska, will have any say on the matter. Whether an individual US state is for or against such a decision, it will be made in Washington, and all 50 states will follow along.

          Unless I am misinformed, implementation of a similar union-wide decision in the EU will require the assent of all 28 separate countries. The decision won't be made in Brussels, but in each of Europe's capitol cities, similarly to recent decisions on immigration and border control.

          Hence my reference to the disparity between those economies. Some of Europe's members may be fine with tariffs, some may not be.

      2. Trigonoceps occipitalis

        Re: @Fibbles

        Will they all row together?

        As in:

        a. to ​cause a ​boat to ​move through ​water by ​pushing against the ​water with ​oars (= ​poles with ​flat ​ends)

        or

        b. a ​noisy ​argument or ​fight

        Enquiring minds want to know.

        1. Kurt Meyer

          Re: @Fibbles

          @ Trigonoceps occipitalis - A.

          Perhaps after a bit of B.

    2. Anonymous Coward
      Anonymous Coward

      The EU is already in a trade war against Russia to please Uncle Sam's money-disbursing minions (Hey, has Russia invaded Ukraine yet? Are we importing HUGE AMOUNTS of US natural gas yet? No matter, pipeline projects problematic to the US have been scuppered)

      Getting into a trade war with The Uncle, too would be ... poetic, maybe?

  2. Anonymous Coward
    Anonymous Coward

    Europeans ? No !

    European politicians ? Yes !

  3. Stevie

    Bah!

    "So. Are Europeans just a whining bunch of data protection hypocrites?"

    Yes.

    Next question. You at the back. You wanted to ask something to do with world peace?

    1. Intractable Potsherd

      Re: Bah!

      *Europeans* aren't. Some politicians in EU countries are (Treason May, I'm looking firmly at you). The same can be said about the USA - most US citizens would very much like to have better global data security than their government allows.

      1. Kurt Meyer

        Re: Bah!

        Agree! Agree! Agree!

        Well said, oh intractable one.

  4. g e

    US thinks Eu is being deliberately protectionist.

    Awwww. Bless.

    <irony/>

  5. Charlie Clark Silver badge
    FAIL

    Very partial piece

    Europe’s robo-Commissioner…

    The opinion of one prof and one unnamed security expert and no mention at all of the current complete revamp of EU data protection and privacy legislation currently working its way through the institutions which will provide minimum standards throughout Europe.

    It's laughable to suggest that existing US law provides adequate protection of EU citizens' data. It'a also laughable to suggest that this is somehow some kind of trade war: the European Commission and the member states were caught as much off-guard by the ECJ's decision as anyone else.

    It's perfectly reasonable for Prof Walden to criticise the judgement but is disrespectful to imply that the judges didn't do their job properly. The ECJ has thus far had a commendable record in its judgements, particularly those instances where it instructs referring courts in EU law.

    1. Kurt Meyer

      Re: Very partial piece

      @Charlie Clark - Charlie, while not mentioned in the article, I have to believe that Dr. Walden is aware of ongoing efforts to revamp EU privacy and data protection laws. For a law professor specializing in "Information and Communications Law" to be otherwise simply beggars belief.

      I don't know anything more about Dr. Walden than I've read in the article, and less than that about Queen’s Mary’s, but I am willing to wager a large sum that he got his current position with more than just good looks and charm.

      "It's laughable to suggest that existing US law provides adequate protection of EU citizens' data."

      The article mentions HR.1428, and correctly points out that is not yet law. If Walden holds certain opinions regarding the judgements of the European Court, or the levels of data protection in Europe and the US, and oversight thereof, he must have some basis for those opinions.

      I look forward to hearing the views of his peers in the EU and the US in regard to these matters.

      As for the anonymous person in the broad category of "European security expert", who is "not impressed", so what? There will certainly be those opposed to the new agreement, as well as those in favor of it.

      "It's perfectly reasonable for Prof Walden to criticise the judgement but is disrespectful to imply that the judges didn't do their job properly."

      That sounds a bit like "Well lads, too bad about the own goal, but it was beautifully done"

      I could not disagree more with your statement if there were two of me.

      Who do you know who has never criticized another's methodology when failure has occurred? It happens all the time, in every field. Why on Earth should judges be exempt?

      1. Doctor Syntax Silver badge

        Re: Very partial piece

        "Who do you know who has never criticized another's methodology when failure has occurred? It happens all the time, in every field. Why on Earth should judges be exempt?"

        Spot the hidden assumption here.

        1. Kurt Meyer
          Happy

          Re: Very partial piece

          Doctor, perhaps my writing isn't as clear as I would like it to be. I did not intend to hide anything. I am always interested in learning, so if you would be willing to help me, I'd be grateful.

  6. Pseu Donyme

    The long and short of it ...

    ..., I daresay, is that prior to Snowden the US enjoyed a fair bit of trust, which, of course, has not been the case since.

    1. Anonymous Coward
      Anonymous Coward

      Re: The long and short of it ...

      Privacy hipster here.

      I mistrusted the US before it was cool.

  7. Anonymous Coward
    Anonymous Coward

    I spy with my little eye...

    As a Yank I find it refreshing to see some sense coming across the pond on this topic, instead of the usual mud-slinging about how the US is a privacy-free zone and we aren't.

    I'm not saying this clears everything up, but it helps!

    1. Charlie Clark Silver badge

      Re: I spy with my little eye...

      US is a privacy-free zone

      That might be debatable – the legal positions are on it are starkly different – but what isn't at issue is the fact that the US treats US citizens very differently to aliens. "Aliens", and this includes EU citizens, have very few rights in US law.

      1. Anonymous Coward
        Anonymous Coward

        Re: I spy with my little eye...

        What about the EU? Do the rights and protections you enjoy within the EU extend to all people outside the EU as well? If not, wouldn't the EU more or less be similar to the US in this case?

        1. DavCrav

          Re: I spy with my little eye...

          "What about the EU? Do the rights and protections you enjoy within the EU extend to all people outside the EU as well? If not, wouldn't the EU more or less be similar to the US in this case?"

          Don't care. If you want the data, make it so.

          That's the point. US said "x,y,z, tulips and daffodils". Then it became clear they were lying their arses off. The Court didn't need to do a legal analysis of the US position, because the US ignored their own laws. So work based on what the US does, and ignore what it says, is the perfectly correct method to proceed.

          1. Anonymous Coward
            Anonymous Coward

            Re: I spy with my little eye...

            I'm curious. Why quote me if you didn't intend to address my point? Hijack much?

        2. Anonymous Coward
          Anonymous Coward

          Re: I spy with my little eye...

          "What about the EU? Do the rights and protections you enjoy within the EU extend to all people outside the EU as well?"

          Yes. In many European countries privacy rights and protection are far better for non EU citizens as well.

          Especially since 9/11 USA turned into "siege mode" and got back to old Edgard Hoover's practices - the mindset where everybody outside is a dangerous enemy if not proved it is not. It's the same mindset of old CCCP, and Putin's Russia as well. It's a pity USA quickly became like their old enemy.

        3. LegalAlien

          Re: I spy with my little eye...

          Big John... YES, US citizens (and every other nationaility in the world) enjoy exactly the same rights as EU citizens, when in Europe, or when affected by a European company or an EU Member State in relation to privacy and data protection rights... Do you now understand why Europeans are not very pleased that the USA does not do the same?

          1. Anonymous Coward
            Anonymous Coward

            Re: I spy with my little eye...

            > "US citizens (and every other nationaility in the world) enjoy exactly the same rights as EU citizens, when in Europe..."

            This explains why millions upon millions of migrants are pushing into Europe. They have the automatic right not to be kept out.

            You do realize how many would gladly abandon all to enter the EU? I'd guess about 300 million. Good luck with that.

            1. Destroy All Monsters Silver badge

              Re: I spy with my little eye...

              This explains why millions upon millions of migrants are pushing into Europe.

              Yeah, thanks USA/UK/Europe for the retarded War on the Middle East and Regime Change in Lybia and Syria. Thanks for building up ISIS, too, I guess.

            2. Charlie Clark Silver badge
              Thumb Down

              Re: I spy with my little eye...

              This explains why millions upon millions of migrants are pushing into Europe. They have the automatic right not to be kept out.

              No, it doesn't. It's the Geneva Convention that guarantees the right of asylum (though not where). As for the reasons people are seeking asylum. Well, they're mainly due to the West's fucking around and stirring up trouble.

          2. Kurt Meyer

            @LDS @ LegalAlien Re: I spy with my little eye...

            Thank you both for answering Big John's question. It seemed legit, to me at least, and your responses were informative.

            1. Anonymous Coward
              Anonymous Coward

              Re: @LDS @ LegalAlien I spy with my little eye...

              As a proposition, "The West messed with the rest of the world and now those places are so awful that most of the people there want to come to the West" is not proven or even indicated.

              I would suggest it's largely the fault of the dominant cultures in those areas. Western culture has its problems, but has proved to be a nice place to live for a lot of people for a long time. THAT is the primary reason the migrants are crowding in; they want some o' that.

        4. Lars Silver badge
          Mushroom

          Re: I spy with my little eye...

          "What about the EU?". Sorry but I find that question quite legit, no reason to down vote it. It's about us, some 900 million people. But as before there is this ever ending effort to divide us, a smoke screen do fool us to forget the real question.

          I should not, but I will tell you now about my crowd sourcing project "GIGO". But first some background or history as academics like to call it (there is a sound to it). Anyway there was this fairly fine time when we had a god for this and for that, fucking, wine, car salesmen, plumbers and what not. All well, choice as they say.

          But then, in some god forgotten place on this earth, they, selfish twats, decided there was only one, or to be more "precise" two, but both "the one and only". Spot the problem, One, the one who looks like me (at least as a bit younger) and the other, a "Greta Garbo" like type who doesn't like to be photographed (they claim).

          What a fucking fuck up, the worst in more than 2000 years.

          So I have decided to introduce the first IT God. I call it Gigo, a soul in a box now waiting for intelligent input. As for hell and heaven, fuck this stupid divide. I have combined it to /dev/null. It's time to regain sanity.

  8. SImon Hobson Bronze badge

    I think he's wrong ...

    In the Shrems case they were asked a specific question - given what we now know about US TLAs accessing data, does safe harbour provide the level of protection needed for FarceBork Ireland to export data to FarceBork US ?

    The answer was "NO".

    The other stuff he mentioned just wasn't considered because it wasn't required to be. All they needed to do was see enough evidence that safe harbour is null. Once they've got that far, a full legal analysis isn't needed.

    If you want the other issues to be considered, then someone has to ask the question.

    1. Anonymous Coward
      Anonymous Coward

      And let's not forget the instance where the FBI is trying to assert they have jurisdiction on data held in EU by Us companies...

      The legal framework the court should have studied proved to be not worth the paper is written on to protect EU citizen data.

      Hope this professor got paid enough by the US lobbies...

    2. Adam 52 Silver badge

      Agreed. It's almost as if the Prof hasn't read the court's judgement and has based his analysis on the newspaper reports. The court verdict was reached on the back of US legislation not Snowden's leaks.

    3. Andrew Orlowski (Written by Reg staff)

      Maybe it isn't clear what the argument here is.

      "In the Shrems case they were asked a specific question - given what we now know about US TLAs accessing data, does safe harbour provide the level of protection needed for FarceBork Ireland to export data to FarceBork US ?"

      Walden's point is that they didn't "show their working", so the judgement isn't legally robust. If the CJEU were to roll the dice again (and it's a dead cert they will be asked to), the pips may come up differently.

      "a full legal analysis isn't needed"

      If you're the Supreme Court, yes it is.

  9. Anonymous Coward
    Anonymous Coward

    There are two parts to the issue of privacy and data protection in the US that have been mixed together in my view here.

    Firstly, there is the US legal framework which is quite messy in this area. On the one hand, for large aspects of this, the US constitution is quite clear but there have been Federal efforts after 9/11 to try to subvert much of what the constitution laid down for reasons only the Federal administration know. This impinges a little on free speech and the right to a private life and meddling thereof by their government.

    Secondly, there is what the NSA and CIA get upto outside of the law. Snowdon's revelations blew all of that into the open. Large scale, indiscriminate collection of Internet and phone data. Secret gagging orders. No oversight in any democratic sense. No redress for mistakes and massive potential for the ruination of innocent people's lives. This kind of think was exactly what the European data protection legislation was supposed to tackle: to bring collection of personal data into the open and apply a reasonable, across-the-board framework to it and ensure that data collection is proportionate, justifiable and allow errors and mistakes to be redressed.

    In my view, the second issue above is the real issue here. Now the article talks much of the legalities and how the new deal relates to recent legislation passed through the Federal administration, but Europe has lost much of any trust that might have existed in the past in this area. It matters not what their laws are if large sections of their government routinely completely ignore it.

    As one of the previous commentators pointed to a related article, we don't see any of the thousands of NSA workers being laid off or any of their equipment being mothballed. So clearly, little has actually changed behind the scenes. It all looks like so much window dressing. I also personally doubt that the Federal administration as a control body has the will or the ability to change anything regarding that situation.

    So in order words, this new deal will change very little.

  10. Lars Silver badge
    Happy

    "“This has left the realm of law and is now in the realm of politics.” I think that happened a very long time ago, perhaps from the very beginning.

    1. Doctor Syntax Silver badge

      '"“This has left the realm of law and is now in the realm of politics.” I think that happened a very long time ago, perhaps from the very beginning.'

      Indeed. In fact the Schrems case dragged it back into the realm of law where it belongs. And I think it'll keep getting dragged back there. The prof seems to have it arse about face.

    2. Steven Roper

      “This has left the realm of law and is now in the realm of politics.”

      Those words, by themselves, amount to one of the scariest sentences I have ever read.

      1. Intractable Potsherd

        Indeed. Walden makes an implicit assumption that politics and law are completely separate entities, when they are not. The fact that many politicians also think this does not make the assumption correct, either practically or morally.

  11. Anonymous Coward
    Anonymous Coward

    "While HR.1428 isn’t yet law, Walden thinks it provides better oversight than many Europeans already enjoy. You can request to see data being used by US law enforcement, amend that data, and even sue the US government."

    You can request, sure, but there is no way of verifying that the answer you get back has any basis in fact. Allowing the US gov. to be sued virtually guarantees that answers to such requests are going to be...tailored...to limit any potential damage. And, of course, this "opinion" ignores the NSA-shaped elephant in the room totally.

    The simple fact is that the US had trust; abused same for decades; and got caught doing so. That trust is gone; and it will take a fuck sight more than "assurances" to get back to where they once were.

    Pointing the finger at other countries isn't helpful either...those are separate problems to be sorted on a country-by-country basis.

    1. Kurt Meyer

      @moiety

      I agree with what you say, with one exception.

      I am glad that Snowden pointed his finger at the US. I hope that he, or other like-minded souls, will continue to point their fingers wherever they believe it necessary. I see nothing but benefit for us when they do so.

  12. EnviableOne
    FAIL

    Get the facts right

    Has the Author not heard of The General Data Protection Regulations (GDPR), currently agreed by the EU organisations and granting a whole load of protection, rights and freedoms to ALL EU citizens.

    The current regieme undet the EU Data Protection directive, they realised was woefully inadequate and so they overhauled it into the new GDPR.

    And both state, that in order for personal data to be moved out of the EU the protections and powers of the individual over there data must be functionally equivalent to that within the EU.

  13. Martin hepworth

    HR 1428 and US Freedom Act

    Seems these covers only US "agencies" (HR 1428) or Intellignce Agencies (US freefom Act) not companies who hold data in general so how does this provide better protect than us Europeans already have when what have covers everyone!

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Other stories you might like