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European Commission Adopts Draft Mandate for EU-US Data Protection Agreement

Following months of negotiations, the European Commission has finally published a draft mandate to negotiate a personal data protection agreement between the European Union and the United States when cooperating to fight terrorism or crime. European politicians, including Viviane Reding, the EU’s Commissioner for Justice, Fundamental Rights and Citizenship, are keen that bulk data transfers of sensitive customer data across the Swift network for counter terrorism purposes be avoided and that increased protections be introduced for this data, bringing it into line with US legislation.

According to the Commission, the aim is to ensure a high level of protection for personal financial information that is transferred as part of transatlantic cooperation in criminal matters. The agreement would therefore enhance the right of citizens to access, rectify or delete data, where appropriate. EU citizens would receive a right to seek judicial redress in the US if their data is unlawfully processed. Independent public authorities would be given a stronger role in helping people exercise their privacy rights and in supervising transatlantic data transfers.

To this end, it would give the Commission a mandate to negotiate a new data protection agreement for personal data transferred to and processed by enforcement authorities in the EU and the US. It would also commit the Commission to keeping the European Parliament fully informed at all stages of the negotiations.

Reding in particular has been outspoken on the subject over the last few months and has been campaigning to ensure data protection is enhanced. “Fundamental rights must be protected and respected at all times. I want an EU-US agreement that protects personal data rights while fighting crime and terrorism. I urge the Council to approve the mandate as soon as possible so we can swiftly proceed with negotiations on this and other important agreements between the EU and the US,” she says.

As indicated by Reding, now that the draft mandate has been published, the European Council must approve the Commission’s negotiating mandate before talks can begin again. The transfer of financial data cross border has been a topic of discussion for some years and there has been some controversy in the past about what has been dubbed the “Swift agreement” in light of the fact that the rights guaranteed under the US Privacy Act can be invoked only by citizens and permanent residents of the US.

The Commission says that it aims to establish legally binding and enforceable personal data protection standards that will ensure that individuals’ fundamental rights and freedoms are protected. Compliance with these standards would be controlled by independent public authorities on both sides of the Atlantic.

Under the Commission’s proposal the transfer or processing of personal data by EU or US authorities would only be permitted for specified, explicit and legitimate purposes in the framework of fighting crime and terrorism. There would also be a right to access one’s personal data and this would be enforceable in courts and there would be a right to have one’s personal data corrected or erased if it is found to be inaccurate. Moreover, there would be an individual right of administrative and judicial redress regardless of nationality or place of residence.

The agreement would not provide the legal basis for any specific transfers of personal data between the EU and the US. A specific legal basis for such data transfers would always be required, such as a data transfer agreement or a national law in an EU Member State. The new EU-US data protection agreement would then apply to these data transfers.

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