A pyrrhic victory for privacy?

Today, when annulling the Council decision about the transger of European airline passenger name records (PNR) to the US, the European Court of Justice made an important decision, highlighting both the weakness of current privacy protection schemes and essential problems in the European institutional set up. While it is not unlikely that privacy concerns, particularly the increasingly problematic lack of state enforced privacy regulation in the US, have guided the Court’s decision, its legal argument is not based on privacy infringement, but on fact that the EU-US agreement fell outside the scope of the European data protection directive. In fact as statewatch.org explains, the privacy plea by the EP has therefore not been considered at all. Statewatch therefore considers the judgment as a phyrric victory for the EP,

“as the agreement will now be replaced either by national agreements, or by a third pillar agreement with the US. Either way the EP has no power over approval of the treaty/treaties or even the power to bring legal proceedings against them. The press may describe this as a victory for the EP or for privacy but they will be mistaken. Moreover, there is a risk that if an EU treaty or purely national treaties are signed with the US that the standard of privacy protection could actually be worse than in the original PNR deal.”

The latter statement, of course, also highlights the dilemma that of institutional Europe’s current make up. If governments want to implement something in the allegedly “securtiy related area”, they will be able to do so, regardless of, say, the European Parliament’s opinion.

For the online edition of the German weekly Die Zeit, Robert Leicht points out another, and possibly the most important reason for the increasing political disregard for privacy concerns (in German): Politicians and their agency executives are simply lacking clear signals from a sufficiently important amount of voters to get out of the data mining business. In fact, he asks, if the negligence with which Europeans (and others) are giving up personal data in the normal course of conducting business is not simply indicating that they are no longer truly concerned about their equivalent of “informational self determination” (a legal construct once established by the German constitutional court as a quasi constitutional right for Germans). He may well be right. This clearly will be an uphill struggle for those who are concerned.

3 thoughts on “A pyrrhic victory for privacy?

  1. “…the standard of privacy protection could actually be worse than in the original PNR deal”

    Not a concern to the EU parliamentarians, for whom this was always about their vanity ‘anti-US’ pose. How much more angry they would be if they understood how little Americans care about their hissy fits!

  2. Interesting to have statewatch considering it a pyrrhic victory after all the fuss they made when the EU initially started working with the US on these issues.

  3. ZF – I suppose that “anti-US” posing may have some relevance, but given the fact that the EP is the only institution that has opposed not simply the US PNR but also the European home-made privacy infringements (like communication data retention), I think you’re being unfair.

    Joe – I don’t think liked the status quo and I doubt they thought that the court would use the legal point it did to strike down the measure. Their concerns are as valid as before. I think it’s just important to understand the identity of EU and US interests in this and all other data mining issues. (Mostly national) European politicians are hiding behind alleged US pressure and are using EU institutions to do what they want just as much.

    The lack of American privacy regulations will become the predominant issue in the next round. The US has already announced it wants to tap into the European telcos retained pool of telecommunications data. Quite frankly, in my opinion, this will only end after a national constitutional court rules it incompatible with a a national constitution. My guess is it’s gonna happen in Karlsruhe, Germany, a couple of months after the directive has become German law.

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