US urges EU to uphold data-sharing pact

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The United States is firing back at a European judicial opinion that declared a critical data privacy agreement between the U.S. and the European Union invalid.

“We believe that it is essential to comment in this instance because the Advocate General's opinion rests on numerous inaccurate assertions about intelligence practices of the United States,” the U.S. mission to the E.U. said in a statement on Monday. 

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In a non-binding opinion issued last week, an advocate general for the European Court of Justice (ECJ) said U.S. intelligence practices revealed by Edward Snowden render the protections of the Safe Harbor program invalid.

Under the 2000 agreement, tech firms like Google and Facebook “self certify” that their data-privacy practices are equivalent to more stringent E.U. regulations. This allows companies to legally funnel data for E.U. citizens across the Atlantic.

But the legal ruling last week questioned whether data has enough safeguards from U.S. surveillance.

“Because the surveillance carried out by the U.S. is mass, indiscriminate surveillance ... in those circumstances, a third country cannot in any event be regarded as ensuring an adequate level of protection,” advocate general Yves Bot wrote in the European Court of Justice opinion.

The U.S. mission contested Bot’s claim that the U.S. engages in mass surveillance, adding that the PRISM program is targeted against “valid foreign intelligence threats” and complies with “publicly disclosed limitations.”

It also pointed to ongoing discussions between the E.U. and the U.S. to update the 15-year-old program, saying that such efforts should be encouraged.

The talks have been stymied by the same privacy concerns that Bot lambasts in his opinion, as the U.S. struggles to rebuild trust after Snowden revealed the breadth of National Security Agency surveillance of U.S. allies.

Earlier this month, negotiators agreed to a so-called “umbrella agreement” that would allow the two sides to exchange more data during criminal and terrorism investigations. The agreement is contingent upon the passage of a bill that would give E.U. citizens the right to seek legal redress for privacy violations in U.S. court.

The U.S. also warned that the ECJ could do “significant harm to the protection of individual rights and the free flow of information that would occur if it were to follow the Advocate General's opinion.”

Currently, around 4,000 U.S. firms rely on the Safe Harbor provision to ensure their cross-Atlantic data transactions are legal. If the ECJ upholds Bot’s opinion, those companies would be left scrambling for alternatives.

A decision is expected sometime this year or next.