The appeal of data protection

Why does the topic of data protection have so little appeal for the electorate?

We just don’t seem to care what happens to our private electronic data, even though we know it is bought and sold behind our backs, used to track our commercial activities (just think of those annoying ads which appear on websites advertising what we have just bought), and sifted through by the intelligence agencies. If it had more appeal, it would loom larger in the big ‘in-or-out’ debate on EU membership, since if there is one area where the EU takes a pioneering lead to protect us, it is here.

The court of justice has had a particularly high profile over recent years, first annulling the data retention directive, and then, just a few weeks back in the now famous Facebook case, upsetting the 'safe harbour' agreement with the US.

But the European parliament’s committee on civil liberties, justice and home affairs (LIBE) - under the chairmanship of UK Labour MEP, Claude Moraes from London - is not far behind. Two recent developments from the committee are of interest to lawyers.

A few days ago, the committee approved a follow-up resolution to the one passed by the European parliament in March 2014 drawing attention to the dangers of electronic mass surveillance of EU citizens. The LIBE committee complains in its new resolution that too little has been done over the last year to deal with the parliament’s original resolution, and says that if the European commission does not act by December of this year, it reserves the right to bring an action for failure to act, or to place certain budgetary resources for the commission in a reserve until all recommendations have been properly addressed.

For lawyers, there is a striking clause in the new resolution, which is very good news for all those striving to protect lawyer-client confidentiality: ‘Para 24 (a) Stresses that mass surveillance severely undermines the professional confidentiality privilege of regulated professions including doctors, journalists and lawyers; underlines in particular the rights of EU citizens to be protected against any surveillance of confidential communications with their lawyers which would violate the EU Charter of Fundamental Rights, notably Articles 6, 47 and 48 thereof and Directive 2013/48/EU on the right of access to a lawyer; calls upon the Commission to present a Communication on the protection of confidential communications in professions with legal professional privilege by the end of 2016 at the latest.’

The resolution will now go to the parliament’s plenary session for approval, probably next month.

But that is not the committee’s only recent publication of interest. At around the same time as the resolution, the committee published a report on ‘A comparison between US and EU data protection legislation for law enforcement purposes’, which explains the background to differences in EU and US approaches to data protection, which have led to the puzzling current struggle between the two blocs.   

The report tells us that the differences arise from the following factors. First, the EU has comprehensive data protection guarantees, codified in law and accompanied by court of justice and European Court of Human Rights jurisprudence. US guarantees in the law enforcement and national security area are, on the other hand, sector-specific, contained in those particular instruments which allow the US agencies to process personal data. US constitutional protection is limited, too: data protection rights are interpreted with a general tendency to privilege law enforcement and national security interests.

Restrictions are typically not limited by proportionality considerations. Non-US citizens are usually not protected by the guarantees.

The report also says that a majority of EU data protection standards cannot be found in US law – such as rules limiting inter-agency data exchange, exchanges with third parties, completely independent oversight, strict proportionality rules, and effective judicial review. Correction and deletion rights either do not exist or are very limited.

In the EU, national governments have not been at the forefront of protecting citizens’ rights. The latest European parliament resolution draws attention to some of the recent laws in some member states that extend the surveillance capabilities of intelligence bodies, including our own dear country with its Data Retention and Investigatory Powers Act 2014.

Is there no clever PR person in either the ‘in’ or ‘out’ campaign who can think of a way of sexing up the topic so that there can be a debate in the UK on the merits and demerits of the EU leading the way on data protection?

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