Brexit – what's not been discussed

Borderless technologies have been in the legal news recently, and it is a shame that the Brexit debate has not touched on them.

Project Fear will say that we can tackle the challenges much better as a united group. Project Bluster will say - taking the European Commission’s announcement in the last few days of its notice to bring anti-trust charges against Google as one example - that of course Google will allow rivals to compete on its Android system, just as soon as an EU-less UK asks for it.

The European Commission’s action against unfair competition by Google’s apps on its Android system is a good example of how action by a large market, made up of significant economies, can bring about change in the behaviour of IT global monsters a thousand times more easily than action by any of those economies on its own.

The commission’s action is not without its critics – that it is anti-American, and more significantly, that it is anti-innovation. But I don’t think anyone criticises it on the grounds that it is not effective. I await the explanation for how such action by a future EU-less UK will be more effective, or as effective, on its own.

These are not the only changes taking place in borderless technologies. As the various articles published recently by the Gazette have highlighted, lawyers must prepare for the EU’s new data protection package, which has finally reached its formal legislative conclusion, and will come into force in two years’ time. Whichever way the vote goes, UK citizens, businesses and lawyers will have to comply with the EU regime when offering goods or services into the EU.

We have had no debate in the context of the referendum of those EU laws with which we will continue to have to comply regardless of the outcome, either by adopting them as our national law for ease (despite having no further say in their passage) or by adopting a cumbersome dual regime. I would welcome someone compiling a list of such laws – it would doubtless be long and interesting.

Finally, there is Privacy Shield, the replacement for Safe Harbour, the arrangement to ensure that EU data going to the US had similar protections to those available in the EU. Safe Harbour was struck down by the European Court of Justice in the Schrems case last year. Unfortunately, serious concerns have recently been published about the new Privacy Shield by the group of EU national data commissioners who gather together in what is called the Article 29 working group (WP29).

It is worth reading their conclusions about the new arrangements, because the thought immediately arises as to who will look after the UK’s data when it is transmitted to the US in the future, if we vote to leave.

In expressing its serious concerns over the new arrangements, WP29 says, among other things: ‘The WP29 however notes that the representations of the US Office of the Director of National Intelligence (ODNI) do not exclude massive and indiscriminate collection of personal data originating from the EU.

All the evidence points to our being better able to regulate borderless technologies when acting within the mechanisms of a larger group of countries

‘The WP29 recalls its longstanding position that massive and indiscriminate surveillance of individuals can never be considered as proportionate and strictly necessary in a democratic society, as is required under the protection offered by the applicable fundamental rights.’

The European Commission cannot but take WP29’s points seriously, and take them up in fresh negotiations with the US. Much UK data goes to the US (that is why Schrems brought his case in the first place, over his Facebook account). If we vote to leave, who will protect our data from ‘massive and indiscriminate surveillance’ in the US? (Yes, I know the answer already, don’t tell me: just as with trade deals, the US Office of the Director of National Intelligence will immediately want to protect an EU-less UK’s data from such surveillance.)

Borderless technologies are different from most, if not all, other aspects of the Brexit debate for two reasons: first, because of their borderless nature, meaning that they come into our country, not like migrants on some form of visible transport, nor like goods and services under the conditions of new trade deals, but invisibly without anyone being able to spot them at the border; and second, because many are run by giants with vast budgets and empires, almost like nation states themselves.

All the evidence points to our being better able to regulate them, and protect ourselves, when acting within the mechanisms of a larger group of countries, backed by enforcement mechanisms, such as the EU competition authority (which can fine a wrongdoer up to 10% of the parent company’s annual revenue) and the Court of Justice of the European Union.

Let us discuss them now.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs