Data protection and data flows

Question:
The issue of data protection and data flows, post-Brexit, is the fundamental question for the digital and tech sectors.

GDPR is one piece of a healthy data flow framework, and the UK is not a healthy country by any measure. Other issues, including other policies on data protection, privacy, adequacy, and data flows, are only beginning to be recognised with less than a year before the UK, and its digital sector, is taken out of the Digital Single Market.

Relevant policies:

GDPR

  • In her Mansion House speech of 1 March 2018, Theresa May declared:
    Fourth, we will need an arrangement for data protection. I made this point in Munich in relation to our security relationship. But the free flow of data is also critical for both sides in any modern trading relationship too. The UK has exceptionally high standards of data protection. And we want to secure an agreement with the EU that provides the stability and confidence for EU and UK business and individuals to achieve our aims in maintaining and developing tehe UK’s strong trading and economic links with the EU. That is why we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.This revealed several worrying things: first, the audacity of claming the UK’s “exceptionally high standards of data protection” as a domestic achievement when they are in fact European; second, the desire to secure “more than just an adequacy agreement”, a tacit admission that her government knows that there is no way the UK will be granted adequacy based on its own domestic surveillance legislation; third, the desire for an ongoing role for ICO, a suggestion which is impossible under current EUDPB rules; and a discussion of the “one stop shop” mechanism as a non sequitur.In other words, this was the opposite of clarity and assurance.
  • Ahead of its second reading, the House of Commons Library published an excellent summary of progress on the Bill up until March 2018.

Privacy Shield

  • The Committee’s February review of Margot James MP’s responses to their questions on the Privacy Shield assessment make for bleak reading: “As things stand there is no specific arrangement for UK national data protection experts to be involved in any way in relation for the comitology process for making third country adequacy decisions during the transition/implementation period. “

Proposal on the processing of personal data by the Union institutions, bodies, offices and agencies

In November 2017 the ESC looked at the future of data protection within European institutions, which was a headache-inducing reminder that nobody who advocated for Brexit prepared for these questions at all.

In February 2018 the committee returned to the proposal on data protection and the EU institutions, noting that “as third country citizens, UK citizens might have to submit a greater volume of data to the EU to travel and work in the EU when they no longer have the free movement rights of EU citizens. We should clarify therefore that we and our predecessors were not concerned, as the Minister assumes, about different data protection rules applying to the EU institutions depending on whether the data of third country or EU citizens was being processed.”

Communication from the Commission to the European Parliament and the Council on Exchanging and Protecting Personal Data in a Globalised World

In May 2018 the European Scrutiny Committee examined the EC’s proposal on exchanging data with non-EU countries, an issue which will take on a new urgency once the UK qualifies as the latter.

As such, the Committee recommended that the document be debated in the House of Commons. Ahead of that debate, which has yet to take place, the Committee asked

a)Regardless of press reports, have these horizontal clauses on data flows in trade agreements been discussed informally or formally in Coreper or the Council yet? If so, what is the view of the UK and other Member States? If not, what is the Commission’s intention in producing the clauses?

b)What does Article B achieve, legally-speaking, in terms of personal data flows? Does it provide for data exchange based on mutual trust and mutual recognition by the EU and the third country in question of each other’s data protection standards? If so, would the clause satisfy the UK’s aspirations for a future data-sharing arrangement based on mutual trust as set out in its Future Partnership Paper?17

For further background some of these specific data flow agreements, see Tech UK’s briefing.

Data Adequacy

In July 2018 the Exiting the EU Committee published a crucial report on the UK’s need to secure data adequacy agreements ahead of Brexit.

The report made several recommendations based on the unrealistic chances of the UK securing both post-Brexit adequacy status as well as a seat at the proverbial table.

Despite the thoroughness of the report, the Chequers statement on Brexit, published just three days later, stated that “In keeping with our commitments to uphold international standards, the UK and the EU would also agree to maintain high regulatory standards for the environment, climate change, social and employment, and consumer protection“. It also proposed “regulatory flexibility where it matters most for the UK’s services‐based economy, and where the potential trading opportunities outside of the EU are the largest, recognising that the UK and the EU will not have current levels of access to each other’s markets…”

That statement did not mention aligned regulatory standards on data flows, and their importance to the tech and digital sectors, at all. That was not an accidental omission.

Council of Europe convention

For those of you who truly want to fall down the adequacy rabbit hole, consider the ESC’s July 2018 review of the recent modernisation of the 1980 Council of Europe convention on the processing of personal data. Will becoming a party to the Convention after Brexit pave the way for an adequacy decision?