A Brief Introduction About the Safe Harbor Agreement
As per the safe harbor definition, the Safe Harbor agreement is defined as the set of principles that are known for governing the exchange of personal data between the European Union (and Switzerland) and the United States of America. The Safe Harbor Act got ruled invalid on 6th October 2015 by the European Court of Justice. The ruling by the European Court of Justice towards not using the Safe Harbor Act anymore led to the development of the EU-US Privacy Shield. The main aim of the Safe Harbor Act was to offer a single set of advanced data protection requirements for the transfer of data across the country borders that had joined the collective of the Safe Harbor.
Theoretical Jurisdictions: Safe harbors are known to be promoted by several legal writers for reducing the uncertainty that gets created by the employment of some vague standard. In theoretical cases, the formulation for the safe harbor is known to combine the virtues of precise rules as well as vague standards that allow the respective legislatures to describe with certainty the special outcome for specific, predictable cases, and for leaving the judges to decide the special case that would remain pending.
United States: In the United States, an instance of the performance of the safe harbor agreement is the Phase I Assessment of the Environmental Site by some property purchasers. Thus, it tends to exercise due diligence along with a “safe harbor” outcome in case future violation is observed. Some prior owner can cause that.
The DMCA (Digital Millennium Copyright Act) is known to represent notable provisions of the Safe Harbor contract that helps in protecting the Internet service providers from the adverse consequences of the respective actions of the users. In a similar case, the directive under the safe harbor agreement in the European Union on electronic commerce is known to provide a similar provision of exercising “mere conduct.” This is known to serve quite similar functionalities like the DMCA USA Safe Harbor in the given instance.
Safe Harbor contracts or laws are being utilized all over the United States of America for addressing how children get treated when they get subjected to disturbing instances like human trafficking, along with commercial sexual abuse or exploitation of children. The laws are being exercises in New York along with Florida and 20 other states in the USA for addressing inconsistent treatment that most children tend to receive after being exploited sexually. The safe harbor laws in the USA are exercises to ensure that children get treated as victims, and not just criminals.
European Union: There is an instance of the execution of the safe harbor agreement with reference to the European Union (EU) Data Protection Directive. The specialized directive is known to set stricter privacy protections for the citizens of the European Union. It is also known to restrict the firms in the European Union for transferring any sort of personal data to any overseas jurisdiction, having weakened privacy laws. After five years, a decision was created to specify the exceptions in which the foreign recipients of information from the EU had agreed to meet the specific EU standards under the principles of International Safe Harbor Privacy.
India: In India, the Safe Harbor contract or rules are known to form a part of the taxation process. Under the respective safe harbor laws in India, the multinational companies are known to declare a certain amount of minimum operational profits that will not be subject to intense transfers and pricing audits. The rules under the safe harbor agreement in India were specified in June 2017 that aimed to amend the previous notification at the time of 2013.
Who Takes the Safe Harbor Agreement?
As mentioned earlier, the Safe Harbor Agreement was signed between the United States of America and the EU (European Union) towards ensuring the safety of personal data during transfers from one country to the other. The Safe Harbor Agreement was designed to make sure that data transfers were protected between the US and the EU. Moreover, the data transfers that took place between the two countries also needed to comply with the European Data Directive of 1995. As per the agreement, it was required that the companies in the United States of America that used to collect data from the European Union was responsible for informing the people about their data being obtained.
Purpose of the Safe Harbor Agreement
The main goal of the Safe Harbor Act was to ensure top-notch security of the personal data of people during data transfers between the European Union and the United States of America. Since its inception in 2000, the Safe Harbor Agreement between the United States of America and the European Union required that companies should collect personal data from the users only after informing them that their data was being collected. Moreover, it was also expected of the companies to let the users know the purpose of data collection along with obtaining additional permissions to pass the data to some third-parties.
Contents of the Safe Harbor Agreement
Compiled in coordination with the EU (European Union) Data Directives 1995, the Safe Harbor Agreement was aimed at ensuring safer data transfers between the two countries. Specifically, the act was known to revolve around seven major principles, including:
- Notice –the subject of the data should be informed about the collection of the respective data –stating how it will be utilized and how to contact the data holder in case of any queries
- Choice –the data subject will be given the option of opting out as well as forwarding the specific details to some third party
- Onward Transfer –data transfer can occur only when the concerned third party is able to meet the specific requirements of data protection
- Security –some reasonable efforts are being made to ensure the safety of data from theft or loss
- Data Integrity –data should be reliable as well as relevant for the original aim of the collection
- Access –the subject of the data should be able to access, edit, or delete any specific information
- Enforcement –there should be an effective means of enforcing the respective rules
How to Draft the Safe Harbor Agreement?
The Safe Harbor Agreement was drafted between the United States of America and the European Union in the year 2000 with the aim of ensuring safer data transfers between the two countries. Towards drafting the same, it was made sure that the individuals agree to the specific terms & conditions of the agreement. The Safe Harbor Letter was drafted that comprised the specific terms & conditions for passing the act. After specifying “what is safe harbor law,” the draft of the agreement contained information specific data that was to be collected, receiving permission from the concerned individuals, and giving access to the users to edit & delete any specific information during the transfer.
Negotiation Strategy
The negotiation strategy for the Safe Harbor Agreement between the United States of America and the European Union aims at providing a good test case for arguments that exist with respect to the transfer of data & information across the national borders. By examining the course of negotiations, it becomes simpler to arrive at a better understanding of the forces that dictate both negotiating positions of the countries along with the bargaining powers which they make use of to realize the respective positions.
Benefits and Drawbacks of the Safe Harbor Agreement
While the Safe Harbor Agreement was aimed at highlighting the benefits of transferring relevant data between the United States of America and the European Union, there were several restrictions to the act as well. Relevant data transfers between the two countries aimed at strengthening political as well as economic development of the nations. On the other hand, there were individuals who were increasingly worried about the overall privacy of their data and how their information was being interpreted. This is the reason the Safe Harbor Agreement was terminated in 2015 to give way to the new data transfer & security act referred to as the EU-US Privacy Shield.
What Happens in Case of Violation?
The Digital Millennium Copyright Act, 1998(1), is known to possess several safe harbors. The provisions of the act are known to protect ISPs (Internet Service Providers) from liability for copyright violations along with other illegal activities of the respective customers.
While there were several provisions for the Safe Harbor Agreement between the USA and the EU, after a legal case between privacy campaigner Max Schrems of Austria, the decision was made that the United States data protection laws were highly inadequate. As such, it became vital to rule the Safe Harbor Agreement as invalid.