PL&B International E-news, Issue 45

1. SWIFT Interbank financial network responds to US regulator’s secret demand for data

Three US newspapers, the New York Times, Los Angeles Times, and Wall Street Journal, disclosed on 23rd June that SWIFT (Society for Worldwide Interbank Financial Telecommunication) responded to compulsory subpoenas from the Office of Foreign Assets Control of the United States Department of the Treasury by ‘providing limited sets of data’. Although SWIFT negotiated with the US Treasury over the scope and oversight of the subpoenas, it was a secret agreement.

The SWIFT press release described itself as ‘the industry owned co-operative supplying secure, standardised messaging services and interface software to over 7,800 financial institutions worldwide.’ ‘SWIFT is not a bank,’ it continued, ‘nor does it hold accounts of any customers. SWIFT is solely a carrier of messages between financial institutions. The information in these messages is issued and controlled exclusively by the sending and receiving institutions’. SWIFT contended that while its fundamental principle has been to preserve the confidentiality of users' data, it must comply with the lawful obligations in countries where they operate.

It would appear that the Belgian government (SWIFT is headquartered in Brussels) knew nothing about this confidential agreement. Neither, for that matter, did the Belgium Central Bank, which is the home country regulator.

Privacy Laws & Business has requested comments on the disclosures from the privacy officers of the US Department of Justice, the Department of Homeland Security, and the Transportation Security Administration, as well as the European Union Data Protection Supervisor. Any replies received will be included in a fuller story in the next issue of the PL&B International Newsletter, available solely to newsletter subscribers.

2. EU Art. 29 DP Working Party provides clarification to USA’s SEC on whistleblowing

On July 3rd, Peter Schaar, Chair of the EU’s Art 29 Data Protection Working Party, wrote to the USA’s Securities and Exchange Commission (SEC) stating that he believes that their cooperation on clarifying their respective rules on whistleblowing “will help solve the concerns of US and EU companies that are bound to comply with SEC Rule 10A-3 and the requirements of Section 301 of the Sarbanes Oxley Act, on the one hand, and European rules on personal data protection on the other hand.”

Schaar announced at PL&B’s 19th Annual International Conference in Cambridge on July 4th that his letter, prepared together with Clarisse Girot, Senior Legal Advisor, at France’s DPA, the CNIL, responded to the SEC’s letter of June 8th seeking clarification of the February 1st Opinion on whistleblowing (PL&B International Newsletter February 2006 p.9) published by the Art 29 Working Party, which consists of the 25 Member States’ Data Protection Authorities, the European Commission and the EU DP Supervisor.

The 5 page letter covers:

  1. the role of audit committees and their ability to provide information to the company’s auditors or appropriate regulatory authorities
  2. confidentiality and anonymity, the risk that anonymous collection of data could be qualified as unfair in the specific context of recent European history, both in World War II and during more recent dictatorships in Southern and Eastern Europe
  3. classes of persons who can use the procedures and persons who can be subject to complaints – “the Working Party has no wish to be prescriptive on either aspect of this issue”
  4. data retention periods, as a general rule “data should be deleted promptly…. as a guideline the period of two months after the completion of the investigation of the facts alleged in the report” with exceptions and explanations
  5. additional matters, for example, “where the costs of such international compliance would be truly excessive or disproportionate and could be avoided.”

There will be a fuller report in the next issue of the PL&B International Newsletter, available solely to newsletter subscribers.

3. UK Information Commissioner issues new guidance on transferring personal data out of the European Economic Area

On July 10th, the UK Information Commissioner issued revised guidance to help organizations wishing to transfer personal data from the European Economic Area (25 EU member states and Norway, Iceland and Liechtenstein) to countries without “adequate” data protection laws.
The first piece of guidance consists of a comprehensive 30 page step-by-step legal analysis of how and when it is necessary to assess the levels of protection for the transfer of data. It also includes detailed guidance on the use of contracts, including outsourcing and binding corporate rules (explained in detail at PL&B’s 19th Annual International Conference in Cambridge by ICO solicitor, Sian Rudgard) , and how and when the exemptions from the 8th principle apply.
The second piece of guidance is a simplified 13 page summary, with clear examples for those
wanting to get an overview of the requirements of the 8th principle, how it applies to their business, and how they can comply with it.

The updated guidance is available on the ICO website.

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Copyright Privacy Laws & Business 2006