Even if the U.S. and EU update their safe harbor agreement by Jan. 31 when European data protection authorities have said (see 1510160030) they'll begin enforcement action, there's no guarantee countries on the continent won't start investigations, said Electronic Privacy Information Center President Marc Rotenberg. He spoke to reporters after Tuesday's joint hearing of House Commerce subcommittees on Commerce and Communications. The hearing, as expected (see 1511020052), focused on the uncertainty that U.S. businesses face after the European Court of Justice (ECJ) in early October nullified the 15-year agreement designed to safeguard data transmitted across the Atlantic.
Court of International Trade activity
While the U.S. and EU agreed in principle to a new updated safe harbor accord, little information about it has been shared publicly, said Republican and Democratic Congressional staff in memos. They were released in advance of Tuesday's joint hearing of House Commerce subcommittees on Commerce, Manufacturing and Trade and Communications and Technology on the uncertainty for U.S. businesses after a European court scuttled the 15-year agreement. Witnesses will also say the revised agreement is needed before the Jan. 31 deadline set by the European Commission's Article 29 Data Protection Working Party (see 1510160030), or companies on either side of the Atlantic could face significant impacts to their businesses and potentially face multiple enforcement and compliance regimes.
Several broadcast, cable and media companies are opposing new FCC rules on the handling of confidential information and subsequent American Cable Association (ACA), Dish Network and Incompas opposition (see 1510260030) to a petition for reconsideration of those rules. That opposition ignores many of the arguments justifying reconsideration and often just parrots the reasoning in the order itself, said CBS, Disney, MPAA, Scripps Networks Interactive, Time Warner, 21st Century Fox, Univision Communications, the U.S. Chamber of Commerce and Viacom in a filing in docket 15-149 posted Monday. The FCC's September order "suffers from significant substantive and procedural errors," and opposition to reconsideration -- like the order itself -- is mistaken when it thinks the Communications Act and Trade Secrets Act allows the agency to make confidential business information broadly available either under a protective order or through the Freedom of Information Act, said Comcast and NBCUniversal in a separate filing posted Monday. The FCC didn't comment.
The Information Technology Industry Council told the Office of the U.S. Trade Representative Wednesday that increasing data localization practices by foreign governments threaten U.S. and global economic growth. In ITI's comments on the National Trade Estimate Report on Foreign Trade Barriers (NTE), the group said members have "experienced a significant increase" in the use of localization measures across the globe. Data localization is the practice of governments employing measures to favor local businesses and enterprises primarily in the information and communications technology space, which ITI said can be done "under the guise of promoting local industries and protecting privacy." These practices have "forced [ITI member companies and others] to make costly adjustments to their operations on the ground, regionally or globally, in order to comply with these measures," ITI said. It identified localization requirements in China, Indonesia, Nigeria, Russia, Turkey and Vietnam, and warned it's possible more governments will consider or put in place similar requirements by the time the USTR's NTE is published. "ITI is greatly concerned about the impact of such digital protectionism on international trade and investment, innovation, and the ability of people and businesses all over the world to benefit from free and open flows of information and data through the Internet and Internet-based technologies," it said. ITI recently released a blog post citing Indonesia's need to address localization practices in order for it to join the Trans-Pacific Partnership (see 1510280075). The public comment submission period for the USTR report ended Wednesday, but comments were only being made available by those who filed them, not the government. “As Internet services become a greater part of the global economy,” it will become “more important to monitor digital trade barriers,” the Computer & Communications Industry Association said in comments. CCIA detailed how recent moves "to restrict online information for alleged copyright reasons violates current trade agreements"; how Internet censorship has affected countries in Asia, the Middle East and Russia; and problems companies face following the European Court of Justice’s ruling earlier this month that declared the U.S.-EU safe harbor agreement invalid, in its comments. “As the economy evolves, the NTE will need to increasingly investigate and respond to barriers to digital trade if the Internet and Internet-enabled services are to continue to be export growth leaders,” said CCIA CEO Ed Black in a news release.
The House Courts, Intellectual Property and Internet Subcommittee scheduled a hearing on international data flows and the promotion of digital trade at 1 p.m. Tuesday, the office of Judiciary Committee Chairman Bob Goodlatte, R-Va., said in a news release Thursday. Witnesses include Information Technology and Innovation Foundation President Rob Atkinson, BSA|The Software Alliance CEO Victoria Espinel, Computer and Communications Industry Association CEO Ed Black, and Mark MacCarthy, Software and Information Industry Association senior vice president-public policy.
Some industry and policy groups urged the Office of the Intellectual Property Enforcement Coordinator (IPEC) to limit the International Trade Commission's (ITC) attempt to regulate information transmitted over the Internet, said comments on the development of IPEC's Joint Strategic Plan on Intellectual Property. IPEC requested public comments on its Joint Strategic Plan during a period that ended Friday, and received 65 submissions.
The European Court of Justice’s ruling on safe harbor leaves no room for interpretation, K&L Gates attorneys said during a webinar Friday. Attorneys from the firm’s offices in Washington, Brussels and France advised companies to review contracts and develop interim agreements to allow data transfers to continue following the ruling (see 1510060001). While the European Commission, like the U.S., wants to agree to another safe harbor agreement sooner rather than later, staunch privacy advocates, like the German government, and those opposed to controversial trade deals, appear interested in blocking a new agreement, K&L Gates lawyers said.
The European Commission vowed to ratchet up privacy talks with the U.S. following Tuesday's rejection by Europe's highest court of the EU-U.S. safe harbor agreement for transfer of personal data. The European Court of Justice (ECJ) ruled safe harbor invalid and ordered the Irish data protection authority to determine whether Facebook's transfer of European subscribers' data to servers in the U.S. should be suspended on the ground that U.S. privacy protections are inadequate. The decision confirms the EC's approach in its negotiations for a new agreement, EC Vice-President Frans Timmermans said at a news conference.
At 4:30 a.m. EDT Tuesday, the European Court of Justice will issue its decision on whether the U.S.-EU safe harbor agreement should be rendered invalid. With the ruling coming so quickly after European Court of Justice Advocate General Yves Bot, citing concerns with U.S. government surveillance practices, declared the agreement invalid and recommended it be suspended (see 1509230001), some speculate the court will agree with Bot’s opinion and abolish the agreement. Others don’t think there will be any winners Tuesday and, regardless of how the court rules, they argue privacy reforms must be made. U.S. and EU consumer groups support having the agreement declared illegal and are going to issue a statement after the ruling encouraging the U.S. to enact a comprehensive privacy law that reflects the EU privacy framework.
Even as both houses of Congress paved the way Wednesday for short-term government funding, federal agencies' contingency planning in case of another shutdown continued. The release of all agencies' shutdown contingency plans highlights the possible effects of a shutdown if a similar resolution fails to pass in December, observers told us. Industry and agency officials previously told us the FCC has restructured its budget, so there will be funding to allow portions of its website to remain online during a shutdown (see 1509250054). One change from the 2013 shutdown is that many agencies' websites will remain online, we found.