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We must soon confront the biggest dilemma over EU data protection reform

Time-running-out-1024x768By Simon Davies

Back in October I gave an address to the joint meeting of the European and national parliaments on the prospects for data protection reform. I made the observation that the public was largely disengaged from the reform process and that the agenda was being carved out amongst key industry and government entities that had the capacity to argue legal issues of astonishing complexity.

The current reform process has degenerated into a degrading display of industry power-mongering and political ambivalence at the expense of our rights.

Eight months on, the same cannot so absolutely be said. The general public appears more aware these days of the meaning of data protection and the process to reform it. Sadly this awareness is almost entirely negative. As I pointed out in a recent blog, the machinations and lobbying behind the current reform process have degenerated into a degrading display of industry power-mongering and political ambivalence at the expense of our rights.

Yesterday I posted a commentary on the EU Council’s newly published position on the draft data protection regulation. This, in my view, is one of the most shameless acts of sabotage of human rights in recent European history, and elected governments should be ashamed to be associated with it. The document may as well have company logos emblazoned on it rather than the EU stars that are supposed to represent a guarantee of respect for rights.

The Council document establishes a stitch-up throughout this entire process. We had always known the extent of industry and government lobbying. We had also known the extent to which some data protection regulators had lobbied for a downgrading of data protection provisions to protect their own interests. However it was only a couple of months ago that I learned just how deeply and well positioned the anti-reform movement had become.

The information that took me by surprise was that at least one Commission Director General is already pushing to give India data protection “adequacy” status so it can freely do business with Europe. India could never be deemed adequately protected under the current European framework but could be given adequacy under the weaker regime envisioned by the Council. Industry self regulation is exactly what Indian authorities have been planning and it would be more in alignment with the Council’s position.

This is one of the most shameless acts of sabotage of human rights in recent European history, and elected governments should be ashamed to be associated with it.

As I observed in last week’s blog, the entire global reform process has been thrown into reverse because of what is happening in Europe.

My summary blog should give you a high level view of some of the implications of the Council position. Still, however dire the situation may seem it’s important to keep in mind that there is still scope for negotiation through the Parliament – and there are MEP’s who are fighting hard to protect the reforms.

The problem as I see it is that the Council position contains a number of glaringly obvious extreme positions (like giving direct marketing default status as a legitimate operation) and that only these extremities will be traded off in negotiations. The truly dangerous elements such as the downgrading of consent and the elimination of the Commission’s role might be retained.

I do fear that we, as affected citizens, have a difficult choice to make. If the Council’s position were to be adopted I would argue that the entire reform process should be abandoned and then re-started. The Council’s framework represents a downgrading of data protection to the extent that privacy rights would be all but eliminated. At worst it would enable a free-for-all that would provide minimal protections for the coming generation.

My vision for a new process would be a more transparent mechanism set within a framework that again puts the citizen in the centre, rather than powerful data controllers and governments. By re-starting the process we might also suspend the global corrosion of privacy rights.

This is quite clearly a blackmail ploy for negotiations

I mentioned in a previous blog that the Council has incorporated a nuclear option that would force an abandonment of the regulation unless agreement was reached on all parts of it. This is quite clearly a blackmail ploy for negotiations, but it’s also a clever mechanism to ensure that industry gets a second bite of the cherry if its goals are not achieved.

However it is also possible that this very device could work in favour of true reform. Switching to a new Directive framework may give civil society and citizens a chance to engage more comprehensively and would create a comparatively weaker position for antagonists.

i really am not sure either way. Much depends now on what comes out of the LIBE Committee. The challenge we face is that there’s a very narrow window between the adoption of a dangerously compromised regulation and the chance to start again. That, I believe, is the key question that we must consider over the coming few weeks.