Europe to US: Pass new laws if you want a data-transfer deal

The United States must pass new legislation to limit how its national security agencies access Europeans’ data if Washington and Brussels are to hammer out a new deal on transferring people’s digital information across the Atlantic, according to European Commission Vice President Věra Jourová.

Speaking at POLITICO’s AI summit on Monday, the Czech politician said the U.S. needed to create legally binding laws to provide European Union citizens’ the ability to challenge bulk data collection by federal authorities in U.S. courts.

The goal, she said, would be “to have legally binding rules, or rule, on the U.S. side guaranteeing this. It’s of course the best and the strongest way to do that,” said Jourová when asked if the Commission would accept a presidential executive order or would require new U.S. legislation to provide EU citizens with the power to sue over how U.S. national security agencies collected and used their data.

“A legally-binding rule would be very useful, I would even say necessary,” she added in reference for the need for new legislation — something that Washington has so far refused to do.

U.S. and EU negotiators have been trying to find a breakthrough over the last 12 months to ensure that transatlantic data flows can continue after the bloc’s top court invalidated the so-called Privacy Shield pact last July.

European judges said that Washington had to better protect EU data, including providing legally-binding rules that would limit how U.S. national security agencies could access EU digital information via bulk data collection practices. They also called on U.S. authorities to make it easier for Europeans to challenge such methods in the country’s courts.

Since becoming president in January, Joe Biden has made these negotiations a priority, including the appointment of a new U.S. negotiator on his first day in the White House.

Many in Washington, though, grumble that European national security agencies are still able to access U.S. citizens’ data via bulk data collection, while Europe now wants U.S. federal authorities to limit similar practices. While the Commission is negotiating a new transatlantic data pact, Brussels does not have jurisdiction over Europe’s data collection practices as national security remains a national competence.

Jourová said that negotiations had mostly sorted out data transfer issues involving private companies like Facebook and Google, and that the main sticking points related to U.S. national security agencies.

“On the commercial side, we don’t see such a big issue,” she told POLITICO. “But of course, there is the issue of access to data from the national security agencies, and we have to be absolutely sure that there is no mass surveillance of data of Europeans when it travels to the U.S.”

The ongoing U.S. negotiations are not the only data headache currently facing Brussels.

On the question of similar talks with the United Kingdom, which must be completed by the end of June, the Czech politician said the Commission was ready to walk away from its decision to approve data flows to the U.K. if Britain diverged too far from EU standards.

“Of course we will not have another option,” she said, responding to a question about whether Brussels would suspend the data flows agreement if London broke commitments to stay aligned with the bloc’s privacy standards. A U.K. minister last week said the country was ready to scupper a deal with the EU if that meant losing the ability to craft its data protection rules in a more business-friendly way.

“We will act if we see the development in the U.K. goes outside the framework,” she said in reference to the EU’s General Data Protection Regulation.

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