Already Under Attack In Top EU Court, Privacy Shield Framework For Transatlantic Data Flows Further Undermined By Trump

from the you're-not-really-helping-things,-Donald dept

A year ago, Techdirt wrote about the melodramatically-named "Privacy Shield." Under EU data protection laws, the transfer of EU citizens' personal data is only legal if the destination country meets certain basic conditions for data protection. Signing up to Privacy Shield is designed to allow US companies to meet that requirement. The earlier framework, called "Safe Harbor," was thrown out by the EU's highest court, the Court of Justice of the European Union (CJEU), largely because of NSA spying on data flows. Privacy Shield was hurriedly cobbled together because, without it, the vast flows of data across the Atlantic that occur all the time would be much harder to square with EU laws.

However, since the NSA has not stopped spying on data flows, some in the EU feel that Privacy Shield offers as little protection for personal data as Safe Harbor. This led the Irish civil liberties group Digital Rights Ireland (DRI) last October to ask the EU's General Court -- one of the more obscure courts of the CJEU -- to annul the Privacy Shield framework, arguing that it too lacks adequate privacy protections. Although there are still some procedural matters to be settled first, largely to do with whether DRI has standing to bring this legal action, the case is considered a serious enough challenge to the Privacy Shield framework that the US government is getting involved directly:

The US government has applied to be an intervening party in a challenge by Irish privacy campaign group Digital Rights Ireland against the Privacy Shield transatlantic data transfer pact.

As the article from the Irish Times explains, the US is not alone: also keen to see the framework upheld are the British, Dutch, and French governments, as well as Microsoft and the Business Software Alliance, all of whom have applied separately to join the action. DRI's basic argument is the following:

In questioning Privacy Shield's adequacy, it says its provisions are not actually fixed in US law. The privacy group will also argue that the agreement neither adequately addresses the court's specific objections to Safe Harbour, nor protects citizens' rights provided for under the EU Charter of Fundamental Rights and by the general principles of EU law.

The DRI's case may have just received a boost from an unusual quarter. As Techdirt reported, the President of the United States has signed an executive order that strips those who are not US citizens of certain rights under the Privacy Act. A spokeswoman for the European Commission told TechCrunch that Privacy Shield "does not rely on the protections under the US Privacy Act." But Jan Philipp Albrecht, a Member of the European Parliament, and the leading expert on data protection regulation there, is not so sure that the framework will escape unscathed. He wrote in a tweet that:

If this is true [about the stripping of privacy protections] @EU_Commission has to immediately suspend #PrivacyShield & sanction the US for breaking EU-US umbrella agreement.

The "EU-US umbrella agreement" refers to another recently-agreed deal that puts in place a comprehensive high-level data protection framework for EU-US law enforcement cooperation. The long thread that follows Albrecht's tweet explores to what extent the Privacy Shield framework is likely to be impacted by the new executive order. There's no clear consensus yet on that. But one thing is for sure: the general thrust of Trump's order probably indicates a broader shift in policy that makes it more likely that the CJEU will strike down Privacy Shield just as it struck down Safe Harbor.

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Filed Under: donald trump, eu, privacy, privacy act, privacy shield, safe harbors, us