The Politics of European Security Policies by Xymena Kurowska & Patryk Pawlak

Author:Xymena Kurowska & Patryk Pawlak [Kurowska, Xymena & Pawlak, Patryk]
Language: eng
Format: epub
Tags: Political Science, Public Policy, Social Policy
ISBN: 9780415689625
Google: I72NZwEACAAJ
Goodreads: 13322045
Publisher: Routledge
Published: 2011-11-04T12:35:37+00:00

Marginalizing Critical Voices: Data Protection Sharks

The membership in homeland security networks was also determined by the clash in approaches between security-orientated actors and those representing data protection interests, i.e. in the European Union these were the European Data Protection Supervisor (EDPS) and national data protection authorities (DPAs) gathered in the Article 29 Data Protection Working Party (WP). In consequence, their voice was marginalized in formal discussions at the transatlantic level.

In the discussion about data protection and cooperation on law enforcement (as has been the case of PNR) part of the problem was the negative stance of national DPAs because of their focus on indicating problems rather than proposing solutions.20 Commission representatives have found this approach discouraging: ‘DPAs are not curious about security issues involved nor what is going on with data once it is collected. They make the process more difficult and complicate cooperation’.21 But this was only part of the problem. More worrying was the lack of communication between law enforcement official and data protection authorities. Each of them simply submitted their opinions, presented their own perspective and ignored other voices. In such circumstances it was difficult to stimulate reciprocal understanding and encourage exchange of information.22 By nature of their work, DPAs saw their role as limiting the access to data. The lack of any signs of flexibility on their part became problematic and resulted in their marginalization.

A more flexible approach by security experts and their openness to alternative solutions has won them more sympathy among policy makers. This could provide an explanation why security questions seem to be given more concern than data protection ones. One Commission official commented that the ‘background of the people who you have in the meeting room determines the final outcome of position that is taken. Security guys are more open and flexibility is what is really needed’.23 After the ECJ judgment, the Article 29 Working Party issued an opinion in which they argued that ‘in case such a successive agreement is concluded under the III pillar regime the EU institutions should nevertheless involve data protection authorities – if not formally consulted as Art. 29 but as national supervisory authorities’. This is because ‘the national DPAs possess valuable expertise and, therefore, they should be heard and consulted during the negotiations and should not be excluded from discussions with the US in the interest of the passengers concerned’ (Article 29 Data Protection Working Party, 2006). Still, the role of DPAs and EDPS was formally very limited at the transatlantic level in the course of PNR II and PNR III negotiations. Even the High Level Contact Group on data protection was designed in a way to exclude any direct involvement of DPAs.

The assessment of real powers of DPAs and EDPS is not universal. There is a big divergence in a degree of enforcement powers that DPAs have in member states. For instance, in the Belgian system the position of DPA is very weak and limited to opinions, whereas in Spain a data protection supervisor has sanctioning powers and may order cancellation of data in case of breaches.

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