EU-USA: DATA SURVEILLANCE: How the USA changed the Commission's draft proposal for a new EU data protection Regulation so as not to stand in the way of FISA/PRISM surveillance of the EU

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The Financial Times reported on 12 June 2013, that due to US pressure and high-level lobbying, the Commission's draft proposal for the new Regulation on data protection (pdf), sent out for inter-service consultation in December 2011, was amended by deleting Article 42. Article 42 would have been effectively an "anti-FISA clause" (the USA's Foreign Intelligence Surveillance Act) and was deleted, after lobbying, by the full college of Commissioners as this would have led to major conflicts with the USA because most data servers of internet companies holding data on EU citizens are based in the USA.

The Financial Times quotes a EU official as saying: "White House officials were making the rounds here and especially targeting Commissioners who have close relationships to the US to get them to remove Article 42" (in the draft proposal).

This volte-face by the Commission followed overt lobbying by the US officials including the submission of an Informal Note on Draft EU General Data Protection Regulation (December 2011, pdf) from the USA and (put online at the time by Statewatch) which led to negative opinions being expressed by a number of Commission DGs.

The US Note says that Article 42 would impede and hinder law enforcement cooperation because "provision should be made to prohibit a controller or processor to directly dispose personal data to requesting third countries, unless authorised to do so by a supervisory authority [eg: a member state data protection authority... the draft regulation would effectively undermine international cooperation" - the "international cooperation" referred to is, of course, a one-way street whereby the USA reserves to itself to right to put under surveillance anyone in the EU or the world.

The final, adopted an published, version: Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (25 January 2012, pdf)

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