The Obama administration successfully lobbied the European Commission to strip its data-privacy legislation of a measure that would have limited the ability of US intelligence agencies to spy on EU citizens, according to three senior EU officials.
The measure - which was known within the EU as the "anti-Fisa clause", after the Foreign Intelligence Surveillance Act that authorises the US government to eavesdrop on international phone calls and emails - would have nullified any US request for technology and telecoms companies to hand over data on EU citizens, according to documents obtained by the Financial Times.
However, the safeguard was abandoned by commission officials in January 2012, despite the assertions of Viviane Reding, the EU's top justice official, that the exemption would have stopped the kind of surveillance recently disclosed as part of the National Security Agency's Prism programme.
EU commissioners from the vast majority of the union's 27 members opposed the measure, arguing that it would have little legal weight since most data servers of large tech companies holding information on EU citizens are in the US, needlessly antagonising Europe's most important ally.
"[Opponents] said it would make [data] transfers more difficult and it was clear at that time already that eventually we would have started trade negotiations," an EU official said, referring to the recently-launched EU-US trade talks. "We didn't want to have any complications on this front."
Still, advocates believed it would have prevented the US from abusing Fisa and given EU legal authorities more firepower in fighting US efforts to cull through Europeans' communications.
According to EU officials, the move came after repeated visits to Brussels by senior Obama administration officials, including Cameron Kerry, the commerce department's top lawyer and brother of US secretary of state John Kerry, who chairs an inter-agency task force responsible for vetting EU data-exchange laws.
Janet Napolitano, the US secretary of homeland security, also personally lobbied Brussels officials, according to one EU official involved in deliberations. "White House officials were making the rounds here and especially targeting commissioners who have close relationships to the US to get them to remove Article 42," the official said, using the measure's number in the original legislation.
US diplomats said they could not comment on the details of the lobbying effort, but acknowledged their views were solicited and welcomed by Brussels officials. William Kennard, the US ambassador to the EU, said the data protection law was "an important piece of legislation" that the US was expected to offer views on.
"That's what diplomats do," he said. "As we both modernise our data privacy systems we must make sure that we build interoperable systems that protect privacy and protect our citizens from transnational criminal threats."
Leading US tech companies, who have worked closely with the Obama administration on trying to weaken the EU data protection legislation, were also fearful of the measure, since it would have forced them to choose between two competing government mandates - the US demand for data and the EU law forbidding it.
"It would have been a total nightmare for us," said the chief privacy officer of one of the largest US tech groups. "There would have been a conflict with any Fisa request made by the US government … it was totally unworkable."
The legislation is currently being debated by the European parliament, and executives at several large US tech companies said they are now worried the measure could be reintroduced by MEPs angry at the NSA disclosures.
Additional reporting by Peter Spiegel in Brussels