Data protection and data sharing took a big step forward yesterday at the U.S.-EU Justice and Home Affairs Ministerial meeting in Washington. The French EU Presidency, the European Commission, and the U.S. Departments of Homeland Security, Justice, and State agreed to a Statement on Information Sharing and Privacy and Personal Data Protection and recorded progress on a set of principles that will advance both data privacy and data sharing in a law enforcement context. (download PDF)

The U.S. and the European Union have long been seeking common ground on data protection and data sharing principles. The U.S. proposed the discussion after divisive negotiations over airline reservation data (“PNR”) finally resulted in an agreement between the U.S. and the EU. The PNR agreement did two things: on the one hand, the U.S. set forth data protection rules for PNR, and on the other hand the EU agreed to approve the sharing of PNR with the U.S., thus protecting from penalty airlines and third countries that cooperate with U.S. antiterrorism measures by providing such data.

Noting that U.S. and EU standards for law enforcement data protection we in fact quite similar, the U.S. proposed a broader set of talks, with a view to reaching a broader agreement with the same basic structure as the PNR arrangement: (1) an agreed set of data protection principles and (2) protections so that private companies and third countries are not punished for cooperating with antiterrorism data gathering measures. A High Level Contact Group was formed to explore this possibility.

The talks began to bear fruit this year. In May, the two sides disclosed that they had reached substantial agreement on twelve data protection principles that both EU and U.S. law enforcement agencies observe.

More progress was made, as the parties took up the remaining job of reaching agreement on ways to protect those who cooperate in data gathering measures. The parties accepted an experts’ report that disclosed broad agreement on matters such as private entities’ obligations, preventing undue impact on third countries, and procedures for resolving questions arising under the principles. For example, the third country provision states that “when the European Union or the United States has international agreements or arrangements for information sharing with third countries, each should use their best endeavors to avoid putting those third countries in a difficult position because of differences relating to data privacy.” These principles demonstrate both sides’ willingness to avoid penalizing private entities and third countries because of possible U.S.-EU differences over data protection.

More negotiations lie ahead, of course. In particular, the parties noted that they have not reached agreement on redress (how to handle individuals’ complaints about how their data was treated) and reciprocity (making sure that the U.S. and EU do not demand higher data protection standards from others than they demand of themselves and their member states).

But, while negotiations are in progress toward a binding agreement that will mutually recognize both privacy regimes, the U.S. and the EU are already providing some comfort to those whose data is collected and to those who help to collect or share such data. Along with the principles, the parties issued a statement promising that, while negotiations continue, the U.S. and EU will “use best endeavours to refrain from activities which undermine these principles.” This statement means that the U.S. and EU will discourage deviations from the agreed law enforcement data protection provisions, which should reassure those whose data is collected for law enforcement purposes. At the same time, the parties’ undertaking should encourage law enforcement agencies, private entities, and other countries to provide data without fear of being drawn into conflicting demands by U.S. and EU data protection regulators.

Stewart Baker
Assistant Secretary Policy