This post was also written by Nick Tyler.
The U.S. Federal Trade Commission (FTC) has waded into the political debate with an Informal Note on the draft EU Data Protection Regulation as reported by Statewatch. In addition, Digital Civil Rights in Europe has reported that the U.S. Department of Commerce engaged in significant lobbying of the European Commission in response to the leaked draft Regulation.
The FTC’s Informal Note, provided to the EC in December 2011, focused on “two overarching concerns”:
- “potential adverse effect on the global interoperability of privacy frameworks” – resulting in divergence rather than convergence of data privacy standards globally; and
- “serious implications for regulatory enforcement activities involving third countries” such as the U.S. – resulting in EU data protection laws presenting a significant obstacle to international enforcement cooperation.
In both respects, the Informal Note portrays the draft Regulation as a backward step that would have an adverse effect on the global interoperability of privacy regimes due to it increasing differences rather than promoting convergence. The FTC also raised concerns about the draft Regulation’s potential to adversely impact international investigations, hinder information sharing between regulatory agencies and undercut enforcement cooperation between the EU data protection authorities and similar privacy enforcement agencies round the world.
In doing so, the FTC’s Informal Note emphasises many of the issues highlighted in our two blogs and Client Alert following the leak of the draft Regulation. In particular, the following themes are highlighted:
- Data breach notification – criticising the Regulation’s “focus on process, instead of on improving security practices”, the note concludes that this “may…dilute the effectiveness and credibility of all such notices.” This echoes a concern first raised by the UK Information Commissioner’s Office during the IAPP Summit in November 2011, relating to notification of all data breaches regardless of seriousness or number of persons affected.
- The “right to be forgotten” – the FTC’s concern relates to a chilling effect on rights to free speech and intimates that a right to be forgotten is little more than a pipe-dream fraught with legal and practical obstacles that render it unfeasible. Basically, the ubiquity of the Internet means that the cat’s out of the bag and any attempt to put it back is doomed to fail.
- The definition of “child” – the EU’s definition of child being anyone under the age of 18 runs counter to the U.S.’s longstanding regulation of children’s privacy (defined as under-13 in the Children’s Online Privacy Protection Act (COPPA)). The FTC refers the EC to its recent review of the COPPA Rule1suggesting it take a more modern and less paternalistic view by recognising:
“…it would be difficult to require parental permission for teenagers because they’re independent, more sophisticated with new technologies than their parents are, and have access to computers outside the home, particularly with the increasing proliferation of mobile devices.”
- Transfers to third countries – criticising the increased complexity in determining adequacy for transferring data outside the EU, the FTC believes that the draft Regulation only makes the process more burdensome, opaque and indeterminate rather than the EC achieving its stated objective of clarifying it. There is undoubtedly a degree of self interest in the FTC’s alarm at the possibility that a U.S. Safe Harbor certification may no longer be recognised (at least in its current form) as a lawful basis for transfers of personal information from the EU to the U.S., as we previously highlighted. The prospect that present lawful trans-border dataflow mechanisms will need to be replaced by new or re-vamped versions, including through the use of binding corporate rules, will alarm every U.S. organisation that has invested significantly in putting legal mechanisms in place to transfer data from the EU to the U.S.
- International Investigations – the FTC raises concerns about the effect on international regulatory enforcement, effectively calling the draft Regulation a ‘blocking statute’, because data controllers will have to notify and receive prior authorisation from a data protection authority before disclosing personal data to any non-EU governmental or regulatory authorities or private litigants outside the EU. The FTC highlights the conflicts as well as perils such provisions will create for U.S. companies with a presence in the EU, especially if an investigation relates to anti-competitive activities, financial or consumer fraud. The FTC suggests that the draft Regulation incentivises “offshoring” evidence, resulting in untimely delays and potentially damaging the interests of consumers, including in the EU.
The FTC’s Informal Note, along with other voices loudly debating the draft Regulation, advocates a more balanced and proportional approach to privacy and data protection.
Whether this US intervention will contribute to a delay in the EC publishing the draft Regulation, or whether, as recently restated by Ms. Reding’s office, publication will still take place on Data Protection Day on 28 January, we don’t have long to find out.
1 COPPA Rule Review Request for Comment, Fed. Reg. Vol. 76, No. 187, Sept 27 2011 at 5905, available at: http://www.ftc.gov/os/2011/09/110915coppa.pdf.