“The difficulty for everyone, even specialists, advisors and the data protection commissioner herself, is that the text of the next agreement itself hasn’t been released so things are very opaque. So wait and see seems to be the most sensible option, while reducing your risk as much as possible.”
Significant consequences
McGarr suggested that for many of the largest players the consequences of having data protection legislation enforced against them would be significant.
“The current situation for these companies is not good and so all of the commercial entities who have relied upon Safe Harbour have been heavily trying to ignore the facts while at the same time acknowledging that if time runs out and data starts being stopped this would be extremely damaging to trade between the EU and the US,” said McGarr.
According to McGarr, any long lasting change to the situation will require the US to compromise on its current position.
“I don’t think that there can be any deal which complies with the European Court’s requirements without there being a change in legislation by the United States. And to date the United States have been unwilling to accede to a change in their legislation regarding access of data. And without that change I don’t believe that any deal will survive a further challenge to the Court.”
This puts the likes of Google and Facebook in a difficult position, both of whom declined to comment when contacted by TechPro on the matter. It is hard to imagine how multinational tech giants that straddle the globe could be forced to fundamentally reorder how they do business to avoid moving data around.
However, McGarr suggests that it is perfectly possible, and in fact there are precedents.
“It’s technically quite possible. The EU-based global cloud companies have already done this in the case of Russia. There has been a series of data centres newly announced which are to be built in either Germany or Ireland and those have happened since October 2015 when the Safe Harbour judgement came out.”
“And I certainly anticipate, said McGarr, “that as time travels on we’re going to see a much heavier Europe-only infrastructure being created. Already a number of the cloud operators will offer you the option of keeping your data within European EU data centres so that there is no transfer.”
Will the US compromise to allow EU data to continue to flow in its direction? Only time will tell.
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