The international affairs chief at the U.S. Department of Justice on Wednesday expressed concern with the European Union's revision of the Data Protection Directive.
U.S. Deputy Assistant Attorney General Bruce C. Swartz said that the proposals requiring the renegotiation of international treaties within five years were particularly worrying and could undermine much of the cooperation between E.U. and U.S. law enforcement agencies
Swartz also said that the section on transfer of personal data to third countries for law enforcement was of grave concern.
In chapter five of the proposed directive, it clarifies that transfers to third countries may take place only if the transfer is necessary for the prevention, investigation, detection or prosecution of criminal offenses or the execution of criminal penalties. But that this should only happen where those third countries are deemed to have an adequate level of data protection.
To date, only a tiny number of countries have had their laws deemed adequate: Uruguay, Switzerland, Israel, Canada, Argentina, Guernsey, Isle of Man and the U.S. But Swartz pointed out that Interpol is active in more than 180 countries worldwide. "This would mean that there would have to be a derogation for every single data transfer request. This would dramatically slow, if not prevent entirely, the flow of information that we find essential in fighting crime," he said.
Formal adequacy decisions are made by the Commission after the Article 29 Working Group has done an assessment. But article 34 of the proposed directive says that if adequacy decisions do not exist, the European Commission can "assess the level of protection afforded by a territory or a processing sector" and allow transfers to take place "on the basis of appropriate safeguards and derogations". The factors assessed to decide if a third country has an adequate level of protection include the rule of law, independent supervision and judicial redress.
This requirement related to judicial redress is reiterated in the data directive revision's Article 54, which requires the right to compensation, something that Swartz finds alarming. "It essentially makes any data processor liable if there is any misuse of that data. Not a 'willful' or 'negligent' misuse. The chilling effect this has on law enforcement agencies is enormous," he said.