Privacy chief condemns weakening of EU data protection

Peter Hustinx, the European Data Protection Supervison (EDPS), has made his warnings in relation to the Data Protection Framework Decision (DPFD), a proposed basis for police data sharing across Europe.

In 2005 the European Union began investigating the creation of the DPFD, which would control the way in which police forces use citizens' data, including during cross-border data transfers. The Council of Ministers published the Framework Decision in 2005, and negotiations have been ongoing ever since.

Hustinx has three times raised serious objections to the way negotiations over the DPFD have progressed. He also previously called for a proportionality of response to data, so that a suspect's data would be treated differently to that of a witness or a convicted person.

He has now raised another serious concern, which is that the negotiations have produced a compromise by which protection will only be extended to data coming from another country.

"When the DPFD was first proposed, it was supposed to cover all aspects of policing and the judiciary," said Hustinx. "The recent agreement by the Council severely limits the scope of the text, and therefore also limits the level of protection the European citizen can expect from the resulting agreement."

"The DPFD cannot lessen the level of protection offered, otherwise this will make it more difficult for police services to meet their international obligations," he said.

Hustinx is echoing concerns he raised in his very first response to the plans in 2005. Back then he called for a requirement that data protection rules cover all police and judicial data, not just that exchanged between member states.

Then, he said that the creation of two classes of data – those from a country and those from a foreign EU nation – undermined the likelihood of people asserting their data protection rights.

The Council of Ministers decided this week that the protection will only apply to data exchanged across borders.

"After more than a year and a half of intense negotiations on this proposal, the Presidency proposed a narrow scope of the Framework Decision, which means that the text will apply to the cross-border exchange of personal data only," said minutes of the Council meeting. "This understanding will also imply an evaluation by the Commission of the data protection system, including the limitation of the scope, three years after the Framework Decision will apply to Member States."

The EDPS said that the move damaged the proposed measure. "A drive for agreement should not dilute the level of protection for personal data provided in police and judicial cooperation in criminal matters," said a statement from the EDPS office.

The move has caused some privacy experts to wonder how much attention the institutions of the EU pay to data protection and to Hustinx.

"This is the third time the EDPS has blown into the wind. He repeatedly raises serious data protection issues which do not seem to be taken on board," said Dr Chris Pounder, a privacy expert at Pinsent Masons, the law firm behind OUT-LAW.COM.

"The European Commission merged data protection and security so that privacy principles would be balanced with security objectives," said Pounder. "When this new outcry is combined with what the EDPS has said previously in relation to [controversial banking body[ SWIFT and passenger name records, one wonders whether the Commission now sees privacy principles as being subservient to security objectives."

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