The Role of Proportionality in Assessing Trans-Atlantic Flows of Personal Data
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- Transatlantic Data Privacy Relationships As a Challenge for Democracy, 2017, 4, pp. 49-84
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Proportionality is a general principle of European Union (EU) law; and has emerged as a key principle of EU data privacy law. This chapter explains and critically analyses the role the principle of proportionality plays in evaluating the legality of trans-Atlantic transfers of personal data, especially in the context of the collection of the personal data of EU data subjects by U.S. intelligence agencies. In doing so, the chapter critically evaluates the ruling of the Court of Justice of the European Union (CJEU) in its important ruling in Maximillian Schrems v Data Protection Commissioner (Case C-362/14, 6 October 2015), which invalidated the EU-U.S. safe harbour agreement. In particular, the chapter explains the Schrems ruling, and the legal background to the ruling, from the particular perspective of the role of the principle of proportionality, as developed under EU law. From this analysis, the chapter identifies key legal difficulties and uncertainties in the application of proportionality analysis to cases involving interference with the rights to privacy and data privacy. Beyond this, the chapter addresses two fundamental conceptual issues arising from the Schrems ruling. First, the chapter explains and analyses the relationship between privacy and democracy in the context of contemporary surveillance practices, explaining the importance of an appropriately rigorous proportionality principle in reigning in apparently inexorable tendencies to unconstrained surveillance. Second, the chapter examines issues relating to the protection of rights against unconstrained extra-territorial state surveillance, contending that the controversy surrounding trans-Atlantic data flows should be seen in the broader context of the obligations of territorially-based states in relation to the rights of those outside of their territories. The chapter concludes with an explanation and analysis of the adequacy of the Privacy Shield agreement, which is proposed to replace the safe harbour agreement, from the perspective of whether or not it allows for disproportionate interferences with the rights of EU persons.
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