The US Patriot Act has struck fear into European users but
don't forget that our authorities have powers too. The USA
Patriot Act probably ranks alongside Sarbanes-Oxley in terms of
recognition and fear of US legislation outside the US. It is widely
known that this is the means by which FBI can get access to
confidential data and the reason that some UK businesses may be
holding back from cloud adoption, preferring an on-premise
solution. But are they right to fear the Patriot Act?
The EU data protection regime prevents the transfer of data
outside the European Economic Area to a country with inadequate
data protection laws or unless the recipient will provide the
adequate protection. The European Commission keeps a list of safe
countries. Canada and Switzerland are on this list and so is the
EU-US negotiated self-regulated Safe Harbor. Most of the large US
cloud providers have signed up to the Safe Harbor principles which
allow them to transfer data from the EU to the US. The EU
Commission is proposing to extend data protection in its proposed
new data protection regulation by stating that it applies to EU
data held outside the EU.
The USA Patriot Act was passed shortly after the atrocities of
11 September and served to revise and consolidate counter-terrorism
laws. This includes sweeping surveillance and search powers without
the need for court order. The American Civil Liberties Union has
challenged the issue of "National Security Letters" which
allows the FBI to collect information and to prevent anyone
receiving a letter from publicising it. While they have had some
success, the Act remains in force.
Impact outside the US
Keeping data in the EU is not enough. In June 2011, the managing
director of Microsoft UK admitted that it would comply with the
Patriot Act as its headquarters are based in the US. While it would
try to inform its customers before this happens, it would not
guarantee this. This means that if you do business with a UK
subsidiary of a US-based cloud operator and you specify that
English law applies and you choose a UK-based data centre operating
under EU data protection laws, the FBI can still get access to your
data. While this had already been suspected, this was the first
clear affirmation and is true for any US-based cloud provider.
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On 12 January 2016, the European Court of Human Rights handed down a decision on the lawfulness of monitoring private messages sent on an employee's Yahoo! Messenger account using the employer's computer system; the case was Barbulescu v. Romania.
The invalidation of the EU-U.S. Safe Harbor framework in October 2015 has created uncertainty for businesses that were reliant on the regime to transfer data to the United States, and has caused political shockwaves on both sides of the Atlantic.
The final draft of the new European General Data Protection
Regulation (GDPR) was agreed on 15 December 2015 and, once it has
been approved by the European Parliament in early 2016, is expected
to take effect by early 2018.