Safe Harbour: A voyage of self-determination

What sort of society do you want to live in? It's one of the most important and substantial questions you can ask. We can expect to disagree about the finer details or even the central tenets of our respective ideal societies, but as a citizen what’s important is that you are offered the choice and the chance to decide for yourself.

In October, the European Court of Justice (ECJ) ruling to invalidate the Safe Harbour data transfer agreement between the US and the European Union was a huge victory for openness, transparency, and freedom. The decision, largely based on revelations of US government snooping on international data flows, was also a win for European self-determination. It constitutes a rejection – loud and clear – of America’s mass surveillance programme that former National Security Agency contractor Edward Snowden exposed to the world in 2013. It's Europe's way of telling the NSA that its behaviour isn't good enough for European citizens. It's a statement: we don't want to live in that kind of surveillance society.

On Wednesday, however, the EU and the US agreed on a new framework: a ‘Privacy Shield’ designed to reflect the requirements of the ECJ’s ruling. Unfortunately, it is highly unlikely that this ‘shield’ will defend European privacy rights in any meaningful way. Despite claims of ‘clear’ safeguards and ‘transparent’ obligations, without further definition around these terms, no legally binding improvements have been made. It is no relief to know that European complaints around the misuse of data will be referred to an ombudsman from the US State Department. Ultimately, the central issue behind the ECJ’s original ruling has not been addressed: mass surveillance is still permissible whenever the US government deems it necessary. Fortunately for European privacy advocates, it is more than likely that the ECJ will reject this agreement on the ground that is still does not effectively safeguard European citizens from American surveillance.

Often the government surveillance debate is framed as if you must choose between a society that prioritizes either privacy or security. The reasoning goes that you must allow an omniscient operator, whether it's the NSA, Britain's Government Communications Headquarters (GCHQ) or the German Bundesnachrichtendienst (BND), to constantly monitor and intrude into your ecosystem to ensure your safety within it. This is a fallacy.

The words of Benjamin Franklin from 1755 seem all too relevant to today: "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither." At their own admission, the NSA can cite no instances where the mass collection of data has been effective at preventing crime or terrorism from happening.

Another key element of the ECJ’s rejection of Safe Harbour was the insistence on the right of each member state to individually determine their respective data legislation. This demonstrates the Court’s crucial recognition that every country, just like every business, has a different set of values and priorities. Laws, much like software, must be tailored to the individuals they effect, not applied with broad, unifying brush strokes. They should accommodate and encourage diversity within national and business communities.

We are experiencing a pivotal moment of international self-determination. Speaking with business author and speaker Jonathan MacDonald recently, he pointed out how the difference between success and failure comes down to one thing: willingness. We have the chance to choose an open-source society that treats its citizens with respect and integrity. In true open-source fashion, we must all work together to make it happen.

Rafael Laguna is chief executive officer of Open-Xchange

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