The crisis dates back to October 2015 when the European Court of Justice (ECJ) ruled invalid the Safe Harbor framework. Safe Harbor allowed companies to self- certify they stored European Union (EU) citizens’ personal data in the US to more stringent European levels of protection. No fewer than 4,500 businesses were signed up to Safe Harbor, so the decision instantly positioned some of them as violators of the EU data privacy directive every time they imported personal data to servers in the US, which is exactly how many leading TSPs operate. Following the ECJ ruling, the Article 29
Working Party (WP29), which represents EU member states’ national data protection authorities, gave the European Commission (EC) and US authorities until January 31 this year to build a successor to Safe Harbor. They missed the deadline by two days, but on February 2 the two sides an- nounced “political agreement” on a new framework with another Hollywood name: Privacy Shield. What is Privacy Shield? No one knows
yet. As the law firm Eversheds put it: “What we appear to have at present is an agree- ment to agree.” Details were expected as Buying Business Travel was going to press, after which WP29 will decide whether Privacy Shield offers the protection that Safe Harbor did not. Many lawyers and privacy advocates argue Privacy Shield will also fail because it is impossible to reconcile European principles of data privacy with the extensive powers of the US government to access information on individuals. “The comments from the EC [on the principles of Privacy Shield] are not enough to make data exchange safer than before,” says Hans-Ingo Biehl, executive director of German travel buyers’ association VDR. As a result, says Biehl, it is no longer viable for travel managers to ignore whether their travellers’ personal data is being sent to the US and if such information is being handled compliantly. Action is required now. “Talk to your service providers and don’t accept any wording which effectively says ‘don’t worry – we have it under control’, which is what one of our members was told,” he says.
BUYINGBUSINESSTRAVEL.COM
Over the past few months many US TSPs and their corporate clients have been landed potentially in breach of European data privacy law
THE BACKGROUND:
The Snowden revelations Safe Harbor debuted in 2000. Since pretty much all that it required a US company to do was declare its adherence to EU data privacy standards, there was “a general lack of confidence that Safe
More data nightmares
Safe Harbor/Privacy Shield isn’t the only data worry out there.
MICROSOFT vs UNCLE SAM Microsoft has been fighting a long lawsuit to prevent the US government accessing its data servers outside the US – in this particular case, in Dublin. Currently in the appeal courts, Microsoft expects the case to go to the Supreme Court.
HOTEL HACKERS Criminals want your travellers’ data, too. Over the past 12 months, Starwood, Hilton, Hyatt, Trump and Mandarin have all had their point-of-sales systems attacked by malware, giving the perpetrators potential access to guests’ credit card details.
Harbor was a particularly robust means for safeguarding data heading across the Atlantic,” one UK travel manager tells BBT. By 2013, Safe Harbor looked less
robust than a chocolate fireguard after revelations by former National Security Agency contractor Edward Snowden of US government electronic surveillance of phone records and internet activity. That prompted the EC to start negotiations with the US for a ‘Safe Harbor 2.0’.
The Schrems case
Negotiations took on added urgency when the ECJ torpedoed the original Safe Harbor last October. The ECJ was ruling on the case of Max Schrems, a young Austrian lawyer who objected to the Irish subsidiary of Facebook forwarding his personal data to the US. The ECJ ruled Safe Harbor invalid because it did not allow EU member state data protection commissioners to verify whether US companies really were protecting data in the way they had undertaken to do. Safe Harbor failed mainly because of a complete lack of accountability or oversight. But the judgment went further. It effectively said data stored in the US is inherently incapable of EU-standard protection. One part of the judgment read: “National secu- rity, public interest and law enforcement requirements of the United States prevail over the Safe Harbor scheme, so that United States undertakings are bound to disregard, without limitation, the protective rules laid down by that scheme where they conflict with such requirements.”
Repercussions for corporate travel “In the business travel sector, man- agement information and the export of traveller data and PNR [passenger name record] information to the US is fairly frequent,” says Ian Skuse, a partner specialising in travel with law firm Blake Morgan. There is no evidence US agencies routinely access data servers belonging to TSPs (although they do, by law, gather PNRs for every flight to, from and through the US). But what matters is whether data transfers to US-based TSPs currently comply with European law.
BBT MARCH/APRIL 2016 29
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