A Golden Opportunity to Restore User Trust

The EU Court of Justice’s recent decision in Schrems, invalidating the EU-U.S. Safe Harbour—a primary mechanism used to lawfully transfer data across the Atlantic—has left both European and American companies reeling. Without the Safe Harbour, many everyday but essential business tasks, like reaching out to potential customers or working with business partners, have become mired in uncertainty.  Despite the media attention focusing on large multi-nationals, this is no less true for smaller companies, who may have operations in one country but customers, suppliers, and partners in both Europe and the United States.

Earlier this week, Justice Commissioner Jourová, testifying before the European Parliament’s Committee on Civil Liberties, Justice, and Home Affairs, sought to calm the waters while also charting a path forward. Although conceding that her discussions with U.S. policymakers on a mechanism to replace the Safe Harbour “are not easy,” she noted several respects in which important progress has already been made, including in the areas of surveillance and judicial redress for EU citizens.  She also emphasised, however, that “business need[s] maximum clarity in the meantime” and that concluding a new EU-U.S. agreement quickly was “crucial” for trans-Atlantic commercial relations.

Although negotiating a new Safe Harbour undoubtedly presents important challenges, the Initiative for a Competitive Online Marketplace (ICOMP) also sees it as an opportunity—and a call to action. As an association representing both small and large firms—including firms in Europe and the United States that do business with customers and suppliers globally—ICOMP emphatically rejects the view, put forward by some, that this a “Europe vs. America” issue.  Rather, we see this as a once-in-a-generation chance for the world’s two largest trading blocs—with deeply integrated economies, strongly shared values, and an unshakable faith in democracy and the rule of law—to strengthen the many ties that already bind us.

Finding a solution is also vital to the success of the Commission’s Digital Single Market strategy, an initiative that cannot possibly achieve its laudable goals if European and U.S. companies are blocked from sharing data with one another.  At a time when EU and U.S. policymakers are working diligently to strengthen trans-Atlantic trade, and to craft a truly 21st Century trading framework, rejuvenating the EU-U.S. Safe Harbour offers a unique opportunity to extend the foundational trade principle of non-discrimination to cross-border data transfers as well.

 

Although Europeans and Americans may approach data protection and government surveillance in different ways, there is far more that is agreed upon than not, and at a practical level, how we balance civil liberties, national security, and other fundamental interests is quite similar. Although the Schrems decision undoubtedly creates important short-term challenges, especially for smaller companies, ICOMP and its members also see it as a golden opportunity for EU and U.S. policymakers to restore user trust on both sides of the Atlantic.  There are many ways they could do this, for instance:

  • Streamline the procedures for U.S. and EU law enforcement to share data in criminal investigations, consistent with each jurisdiction’s data protection rules—which took a big step forward with the recently agreed U.S.-EU Umbrella Agreement.
  • Agree to respect privacy rights of users regardless of their citizenship–something that the U.S. House of Representatives has already endorsed by passing the Judicial Redress Act.
  • Agree to respect each other’s digital sovereignty, including when seeking to access data stored abroad.
  •  Work to promote greater transparency and accountability over government surveillance, especially of online communications and content.

Although governments must lead these efforts, it is incumbent upon all of us—companies, civil society, and academia—to support them. ICOMP pledges to do its part by seeking opportunities to work collaboratively and constructively with all stakeholders on workable, pragmatic solutions.