When European Courts judged the 15-year-old EU-US Safe Harbour/Harbor treaty to be invalid last October, Internet news sites started to report how terrible this was for EU companies placing data into cloud services offered (mostly) by American companies. For some, that may be true, but that assumes Safe Harbour is the only protection in place.
This week, IT news sites are at it again. The Register (a site which I view as the tabloid newspaper of IT news sites) has an article titled Safe Harbor 2.0: US-Europe talks on privacy go down to the wire but the actual URI belies a much more dramatic title of “Safe Harbor countdown to Armageddon”. Sensationalist at best, some might even say irresponsible.
I’m no lawyer but, for my customers, who are implementing Microsoft cloud services, there seems to be nothing to worry about and I’ll explain why in this blog post. Of course, Microsoft is just one of many cloud services providers – and for others there may be valid concerns.
The United States Export.Gov website currently displays the following text regarding Safe Harbor:
“On October 6, 2015, the European Court of Justice issued a judgment declaring as ‘invalid’ the European Commission’s Decision 2000/520/EC of 26 July 2000 ‘on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce.’
In the current rapidly changing environment, the Department of Commerce will continue to administer the Safe Harbor program, including processing submissions for self-certification to the Safe Harbor Framework. If you have questions, please contact the European Commission, the appropriate European national data protection authority, or legal counsel.”
EU Model Clauses trump Safe Harbour
Microsoft President and Chief Legal Officer, Brad Smith, issued a statement on 6 October 2015. Quoting from that article:
“For Microsoft’s enterprise cloud customers, we believe the clear answer is that yes they can continue to transfer data by relying on additional steps and legal safeguards we have put in place. This includes additional and stringent privacy protections and Microsoft’s compliance with the EU Model Clauses, which enable customers to move data between the EU and other places – including the United States – even in the absence of the Safe Harbor. Both the ruling and comments by the European Commission recognized these types of steps earlier today.
There’s also a follow-on post which talks in general terms about the wider issues and privacy beliefs but the key point is that Microsoft offers EU Model Clauses within its contracts, which go beyond Safe Harbour. Microsoft also has an FAQ on the EU Model Clauses that is worth a read.
Quoting again from the 6 October 2015 statement:
“We wanted to make sure all of our enterprise cloud customers receive this benefit so, beginning last year, we included compliance with the EU Model Clauses as a standard part of the contracts for our major enterprise cloud services with every customer. Microsoft cloud customers don’t need to do anything else to be covered in this way.”
That suggests to me that customers who have signed up to Azure Core Services, Office 365, Dynamics CRM Online or Intune since early 2014 already have greater privacy protection than was afforded by Safe Harbour – and that protection meets the EU’s current requirements. In short, Microsoft customers don’t need to worry about Safe Harbor (sic).