Last week, (September 23, 2015), Advocate General Yves Bot (AG), an adviser to Europe’s highest court, issued a nonbinding opinion that the agreement between the EU and the U.S. for data transfers from the EU to the U.S. should be deemed invalid by the European Court of Justice.

The opinion declared that the European Commission’s 2000 decision to endorse the Safe Harbor Agreement, which allows companies to transfer data of Europeans to the U.S. provided that they self-certify to adhere to EU privacy laws, should be declared invalid because it does not adequately protect Europeans’ privacy rights. The safe harbor program is presently used by approximately 4500 companies.

The crux of the argument was based on the NSA’s comprehensive access to data. He said, “Such mass, indiscriminate surveillance is inherently disproportionate and constitutes an unwarranted interference with the rights guaranteed by Articles 7 and 8 of the Charter.” The criticism includes Europeans’ inability to challenge law enforcement and national security agencies from accessing their data.

In response, the U.S. Mission to the European Union issued a statement on Monday (September 28, 2015) stating that the AG relied on inaccuracies in the underlying case against Facebook pending in Ireland. “The United States does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens. Moreover, the advocate general’s opinion fails to take into account that—particularly in the last two years—President Obama has taken unprecedented steps to enhance transparency and public accountability regarding U.S. intelligence practices, and to strengthen policies to ensure that all persons are treated with dignity and respect, regardless of their nationality or place of residence.”

The European Court of Justice has announced that it will issue its opinion on October 6^th. We are watching closely, because if the Safe Harbor program is declared invalid, companies that rely on safe harbor certification will have to determine compliance in the wake of the declaration. We will keep you posted.

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