back to article EU's decision on UK data adequacy set to become 'political football' in broader Brexit negotiations

No matter the legal reasoning, an "adequacy" decision to let data flow between the UK and the EU will hinge on the ups and downs of the wider Brexit negotiations, which are entering a tense final phase. It was once almost a foregone conclusion that the UK would comply with EU data protection law enshrined in GDPR after the …

  1. Charlie Clark Silver badge

    Foregone conclusion?

    It was once almost a foregone conclusion that the UK would comply with EU data protection law enshrined in GDPR after the Brexit transition agreement ends on 31 December 2020.

    Some people might have thought that but that would have left the ECJ as the ultimate arbiter. Add to this the list of donors to the Tory Party who are desperate to dispense with things like personal privacy, and it was obvious that the UK would try and offer a sop. Won't help though because ECJ's judgements have been clear and consistent on this and it's not as if the UK has anything like the same kind of bargaining power as the US when it comes to proposing fudges. EU companies will not want to risk the potential fines and will definitely seek to move data processing out of the UK, if they're not already doing so.

    1. big_D Silver badge

      Re: Foregone conclusion?

      Yes, the to do list until the end of the year is pretty full...

      1. Adjust RIPA to be Human Rights compliant.

      2. Adjust DPA to be fully GDPR compliant

      Just those two points will take a lot of doing, let alone weakening DPA further.

      1. Cederic Silver badge

        Re: Foregone conclusion?

        Wait? So the DPA 2018 that implemented GDPR in UK law isn't GDPR compliant?

        I'm confused :(

      2. Doctor Syntax Silver badge

        Re: Foregone conclusion?

        Current DPA is GDPR plus a little wriggle room for HMG. I dare say they'll get away with it if they don't try to enlarge it. However as they've already shown with the Internal Market Bill, they're not to be trusted to do anything in good faith.

        1. Mike 137 Silver badge

          Re: Foregone conclusion?

          The "wriggle room" is not little at all. Two of the most interesting areas of DPA 2018 non-compliance with the GDPR are that the right of access does not apply to immigration data or to confidential references. In both cases data subjects can suffer abuse of their human rights without ever being able to find out why, and consequently to defend themselves. Both of these abuses emerged as arguably lawful "derogations" from the GDPR.

          The most egregious departure however is the UK's position on transparency in relation to "national security", whereby it's possible for someone to be convicted of a criminal offence with severe penalties without being able to discover the evidence against them.

          These are very real stumbling blocks in the path of an adequacy decision, regardless of whether the process is used as a bargaining chip, and they've been self-evident for several years now.

          1. Cederic Silver badge

            Re: Foregone conclusion?

            Given Article 23 sections 1(a) and 1(d) explicitly allow for your supposed 'most egregious departure' from GDPR I do struggle to understand your point. By conforming with GDPR we're egregiously departing from it?

            As for immigration, I disagree that immigrants should be prevented seeing evidence used to assess their right to stay in the UK but legally there are multiple Article 23 exemptions that apply.

            References are a more interesting point, but the law does at least provide clarity regarding the relative rights of Person A when sharing their opinion of Person B to retain the privacy of their opinion vs the rights of Person B to know them. As GDPR creates an inherent conflict of rights in that space you should be grateful that the DPA provides certainty.

          2. Anonymous Coward
            Anonymous Coward

            Re: Foregone conclusion?

            “ The most egregious departure however is the UK's position on transparency in relation to "national security", whereby it's possible for someone to be convicted of a criminal offence with severe penalties without being able to discover the evidence against them.”

            I agree with you but suspect the same provisions exist in EU legislation too.

            This is not binary. It’s not EU good UK bad. There is bad stuff in the EU too. If you believe the EU can’t do any wrong then you are severely naive.

            1. Ken 16 Silver badge
              Windows

              Re: Foregone conclusion?

              This isn't about good vs bad. When the UK was in the EU, it had a derogation in place for national security. Several EU countries do. The EU doesn't allow GDPR derogations apply to 3rd countries.

              You could view that as unfair but in this case the EU does 'make the rules' and as any member state holds vetos on regulations and decisions, they get more latitude. The new UK data rules proposed will presumably say that the UK government gets to opt out on some provisions but that anyone else doesn't.

  2. big_D Silver badge

    Erm...

    it will fudge the decision for the 'adequacy' of UK data law," Pounder claimed.

    I point Mr. Pounder at the situation with the USA, where the EU tried to "fudge" the adequacy decision with Privacy Shield, which was declared null and void over the summer, after US non-compliance for the past 5 years (and 10 years or so of failure to comply under Safe Harbour before that).

    I can see Max Schrems starting a new case on day 1.

    Also, it doesn't need to become a political potato. The UK has been reprimanded a couple of times by the European Court for its failures in data protection law, having RIPA kicked back as breaking ECHR at least twice. The UK will, theoretically, have to severely tighten up its laws, before the end of the year.

    1. Len Silver badge
      Devil

      Re: Erm...

      I can imagine that if Max Schrems' NOYB starts a crowdfunder to bring a case against the UK government's practices that quite a lot of Brits will chip in to retain some level of personal privacy.

      1. Yet Another Anonymous coward Silver badge

        Re: Erm...

        That's the whole point. If Eu data is being harvested in the UK, where do you sue ?

        Sue the UK govt in UK courts where they can just write a new law, or declare it national security, or tack it onto the end of an enabling act or emergency powers bill

        Or in Europe where the UK government can just ignore it

        .

        1. big_D Silver badge

          Re: Erm...

          European Court of Justice.

        2. Charlie Clark Silver badge

          Re: Erm...

          The companies providing the data that is being harvested can be sued in the relevant country of operation, which is why EU-based companies will probably stop personal data being processed in the UK until the UK can provide sufficient assurance that GDPR's provisions will be respeced. As for UK companies wanting to trade in the EU: they will also have to conform to GDPR if they wish to be able to continue to trade.

          This is one area where GDPR made significant changes over liability and jurisdiction in comparison with previous legislation: it's no longer possible simply to seek the country with the friendliest ICO as Schrems cases have demonstrated and we'll soon see more summary fines for breaches.

  3. Anonymous Coward
    Anonymous Coward

    Cummings has a brilliant solution

    Transfer the data onto physical media and transport by truck - via Kent

    1. TimMaher Bronze badge
      Thumb Up

      Re: Cummings has a brilliant solution

      Need a licence for the truck to cross the Kent border

      1. Anonymous Coward
        Anonymous Coward

        Re: Cummings has a brilliant solution

        Yes, but the license will be digital. Just need to query the system for whichever other truck has the license in it's data payload. You may ask, where is the data stored on which truck is carrying what? Answer - on some other trucks.

        Construction of the new Moebius Channel Tunnel of Recursion begins in 2024

    2. Steve Davies 3 Silver badge

      Re: Cummings has a brilliant solution

      Don't you mean Cummings aka Baldric?

      Oh silly me. Some of Baldrick's cunning plans seem actually sensible when compared to those coming out of No 10 since BoJo took over as Chief puppet.

  4. Anonymous Coward
    Anonymous Coward

    You're telling me Cummings with his deep links to Cambridge Analytica and AIQ and their involvement in industrialised, global privacy violations, data theft and voter suppression wants to repeal the Data Protection Act?

    Well I couldn't possibly guess why he might want to do that.

    1. Nick Ryan Silver badge

      Yep... the abuse of personal data for monetary and power (political) gains are what Cumtings is all about. Personal standards, leading by example, integrity, trust? All worthless when one can (ab)use big/personal data to influence.

      1. Anonymous Coward
        Anonymous Coward

        It's now clear why Cummings wanted data scientists for Number 10

        Not to analyse what would be the right policy, but to see which would be most popular - or populist.

        Well, how's that working out for you Dom? Serves you right for using that shonky Palantir tech.

  5. Anonymous Coward
    Anonymous Coward

    All your data are belong to ...

    ... Dominic Cummings.

    1. Steve Davies 3 Silver badge
      Alert

      Re: All your data are belong to ...

      There are obviously some supporters of Mr Cummings around today. Please go and sit on the naughty step until you see the errors of your ways. The sooner both he and Bojo are consigned to the scrapheap the better.

      1. Anonymous Coward
        Anonymous Coward

        Re: All your data are belong to ...

        “ There are obviously some supporters of Mr Cummings around today. Please go and sit on the naughty step until you see the errors of your ways. ”

        You are obviously right.

        Do as you say etc.

  6. codejunky Silver badge

    Hmm

    Everything is a political football until it becomes certain to cut things off and then suddenly there is flexibility. The amount of last minute acceptance is not helpful to anyone.

    1. Lon24

      Re: Hmm

      I'm already losing business because some of our servers are in the EU and some UK customers insist on only using UK servers "to be on the safe side". Given some of these are in the legal business the fear appears to have some substance.

      There is a reason I tend to use EU servers. They are often cheaper, faster, more reliable with better technical support than the 'world-beating' UK data centres that have screwed me in the past.

      I also have one hold-out with an .eu domain. Presumably he is hoping Germany will invade before Christmas ... last week I noticed some signposts had been removed in Kent. Ominous ;-)

      1. Ken 16 Silver badge
        Trollface

        Re: Hmm

        Don't worry about the sign posts, they're being removed so that truck drivers don't route there inadvertently.

        1. Lon24
          Pint

          Re: Hmm

          But we need that protective blockade of 7,000 lorries to protect London. Yesterday I saw a Spitfire flying out of Biggin Hill. Clever move - they fly too slow to attract the Luftwaffe's latest missiles. And putting the engine at the front will fool their infra-red detectors.

          Jonny Foreigner will long rue the day they messed with Bulldog Boris and his trusty Covid-10 Field Marshalls. £1,000 for each who dare break 14 day quaranine on the beaches. £10,000 if they get caught again hopping through Kent. Treasury deficit sorted and a Falkland moment for our leader.

          What could possibly go wrong?

  7. Pascal Monett Silver badge

    "Dominic Cummings [..] sees GDPR as a hindrance"

    So does the NSA and every Nazi-cum-dictator who wants to know everything on everyone in order to be able to blackmail (or black bag ?) more effectively.

    The EU : fast becoming the last bastion of Freedom, Privacy and Justice for All.

  8. Anonymous Coward
    Anonymous Coward

    Fail

    According to the guardian!!!!!!!

    No point reading after that.

    If I was reading some other publication that said “according to the register” I’d happily read on, but you really can’t rely on the guardian to provide a. Objective unbiased assessment.

    1. Anonymous Coward
      Anonymous Coward

      Re: Fail

      As opposed to what, the Daily Heil? The Torygraph? Head of Tory propaganda BBC Political Editor Laura Kussenberg?

      1. I ain't Spartacus Gold badge

        Re: Fail

        As opposed to the Register, as the OP made clear. I broadly agree with him. I pretty much automatically trusted the Guardian on facts up until the new editor took over a few years ago. At this point I'd have to double check - because they've become much more of a campaigning organisation and much less of a newspaper.

        I'm on the centre right in politics, so I don't often agree with the Graun. But it used to provide good reliable news and often thoughtful comment. And I read it to so I could learn. Nowadays I think it's just as much part of the depressing "culture wars" as the Mail or the Telegraph.

        I still trust the Beeb, because they make an effort to check their facts. Rather than just printing any old report produced by a campaign group because they agree with the point it's making - and who gives a damn if the stats are basically made up.

        1. Anonymous Coward
          Anonymous Coward

          Re: Fail

          @"As opposed to the Register, as the OP made clear. " asside from the guardian who is reporting the truth of what is happening in the UK? all publications have their own slants but at the moment the majoirty in the UK are slanted too far right.

          Take BREXIT for example, seemingly more than half the population voted to leave based upon promises that BOJO and friends have not kept and infact have acted against.

          The tories have always targetted the bases instincts of the population and once in power have alays given any remaining communal property away ti to the those that already have more than enough.

          That the majority of publications in the UK are owned by the same people who always get the windfall should not be seen as a surprise but there you go. People are blinded by their hate and we all pay the price of their lack of vision.

  9. EnviableOne Silver badge

    UK Has always been on dodgy digital ground

    WP29 the arbiters of adequacy pre GDPR always had issues with the Uk implementation of the EU data directive (that leadt to the 1998 act)

    there are issues around a lot of the derogations in GDPR along with RIPA and DEA, and at no point has an adequacy decision ever been foregone.

    The only reason that the UK remained adequate was it was a member state, I can see there being some issues getting data out of EU based clouds on 1 Jan 21

  10. codejunky Silver badge

    Interesting

    Not sure how this will be worked out but it appears GDPR has the side effect of limiting the means of removing harmful content from Instagram-

    https://www.continentaltelegraph.com/2020/10/you-cant-track-the-nutters-online-because-gdpr-makes-being-a-nutter-a-privacy-matter/

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