Sunday, 11 December 2011

How do the Commission’s proposals square with its Impact Assessment?

I’ve recently learnt that fellow blogger Markus Kastelitz read my posting about the Commisison’s impact assessment on the data protection reform (published on 8 October), and tried to get a copy from the Commission.

A couple of weeks ago, he received a letter from the Director-General, Ms Le Bail, of the Directorate-General Justice of the European Commission refusing the request. The explanation was as follows :“First, I have to clarify that the Commission has not yet issued any staff working document on the impact assessment for the future EU legal framework. Even though, the impact assessment document we possess has not been disclosed yet. The document is covered by one of the exceptions provided for by the policy relating to access to documents and therefore it cannot be made available to you. The exception which applies to the document you requested is that laid out in Article 4 (3) of the above-mentioned Regulation (...) In the case of your request, granting access to the said document would prejudice the ongoing intra-Commission decision-making process on the future data protection regulatory framework. Access to this document may be granted once the decision-making process on this matter is completed. (...)”

That, of course, was before the current draft proposals (let’s call them “Version 56”) were leaked onto the internet. I’m not sure whether this changes anything – but it might. How much more prejudice can publication of that document now cause to the ongoing consultation, since the text of the document containing the actual proposals is so readily available on the internet?

Back in October I described three quite detailed options that the Commission was considering, to make the changes it thought appropriate. I also explained that the Commission had analysed the impacts of these options. The analysis included an appreciation of how well each option addresses the problems that were originally identified, their political feasibility / acceptability by stakeholders, financial & economic impacts, social impacts, impact on fundamental rights and their impact on simplification.

It appears to me that the authors of Version 56 have basically gone for the option which the Commission considers has a low risk of political feasibility / acceptability: this option would be too unbalanced as it would highly strengthen data subject rights but at great costs for data controllers. Most stakeholders would find it too radical.

Now, I have not heard of any Commission attempts to take down Version 56 from the internet – so perhaps the ground is shifting. Oh, the power of publishing information on the internet. Long gone are the days when all Governments had to worry about were what was published by newspaper barons. But I wonder how Governments will manage, in future, to discuss sensitive issues. What new communications technology will they use which prevents the average internet user from finding out what they are up to?

Perhaps they’ll start to communicate via Blackberry Messenger – after all, if the security of BBM is hard for national authorities to break when the great unwashed are indulging in a spate of rioting, it could also prevent us oiks from learning what the Commission is up to when the Commission wants to keep something quiet.

What I had not expected was a Regulation for the oiks and a Directive to take care of issues relating to police and criminal justice. Given the ever increasing co-operation between the (state) law enforcement regime and the (private) security and anti-fraud networks , it really ought to be possible for both groups to operate using broadly equivalent rules. Given the ever increasing privatisation of the administration of law and order, it would be a shame if state actors were to enjoy significantly greater freedoms should equivalent responsibilities be devolved to actors in the private sphere.

Let’s see if the next draft of a new regulatory framework, to be released sometime next year, will be more balanced and less radical.