Data Protection Commissioner v. Facebook & Max Schrems (CJEU)
- U.S. Defends Privacy Shield, But Fails to Comply with Privacy Commitments: The Department of Commerce has told the President of the European Parliament that the US is in compliance with the Privacy Shield, a pact that permits US companies to obtain the personal data of Europeans. The statement follows a resolution of Parliament to suspend the international arrangement if the U.S. did not comply in full by September 1. The Parliament cited the Cambridge Analytica data breach, the reauthorization of FISA Section 702 without reform, the failure to stand up the PCLOB, the passage of the CLOUD Act, and the absence of a Privacy Shield ombudsman. The Commerce Department disputed the Parliament's findings but failed to show progress on the issues identified. EPIC highlighted similar problems with data protection in the United States in recent comments to the European Commission. Almost six months have passed since the FTC reopened the investigation of Facebook's compliance with the 2011 consent order, which followed a complaint from EPIC and other consumer privacy organizations. (Sep. 5, 2018)
- EPIC Comments on Second Annual Privacy Shield Review: EPIC provided comments to the European Commission to inform the second annual review of the EU-U.S. Privacy Shield, a framework that permits the processing of the personal data of Europeans in the United States. EPIC detailed the latest privacy developments in the U.S., including the extension of Fourth Amendment protection to cell phone location data in Carpenter v. United States, passage of the CLOUD Act, the FTC's failure to enforce its legal judgment against Facebook, the vacancies at the PCLOB, the absence of a Privacy Shield Ombudsman at the Commerce Department, and the nomination of Judge Brett Kavanaugh to the Supreme Court. The Commission approved Privacy Shield last year, but sought additional steps by the United States. The European Parliament has called for suspension of the pact if the U.S. does not fully comply by September 1st. The European Commission will make a final determination this fall. (Aug. 14, 2018)
- For Internet Policy, EPIC Urges Congress to Update U.S. Privacy Laws (Jul. 30, 2018) +
- European Parliament: 'Privacy Shield' Does Not Protect Privacy, Calls for Suspension (Jul. 5, 2018) +
- FTC Announces Another Privacy Settlement, But Again Imposes No Penalties (Jul. 2, 2018) +
- European Civil Liberties Committee: 'Privacy Shield' Should Be Suspended (Jun. 12, 2018) +
- EPIC Seeks Records from FTC Regarding Irish Audits of Facebook (May. 11, 2018) +
- Facebook Denied Attempt to Delay Review of EU-US Personal Data Transfers (May. 3, 2018) +
- European Court of Justice Receives Key Questions on Future of EU-US Personal Data Transfers (Apr. 12, 2018) +
- EPIC Tells House to Probe Commerce Secretary on Data Protection, Privacy Shield (Mar. 20, 2018) +
- European Court of Justice Grants Standing to Privacy Advocate But Bars Class Action under Austrian Law (Jan. 30, 2018) +
- Congress Renews Controversial Surveillance Measure, EU Impacted (Jan. 18, 2018) +
- European Privacy Experts Call for New Review of EU-US Data Arrangement (Dec. 5, 2017) +
- European Court Adviser Says Facebook Privacy Class Action Barred (Nov. 15, 2017) +
- European Court Adviser Says Local Regulators Can Enforce Privacy Laws Against Facebook (Oct. 24, 2017) +
- EU Approves Data Transfer Arrangement, But Seeks Stronger U.S. Privacy Protections (Oct. 18, 2017) +
- EPIC Urges House to Strengthen US Privacy Laws for Cross Border Data Flows (Oct. 12, 2017) +
- FTC Announces Privacy Shield Settlement but Imposes No Penalties (Sep. 8, 2017) +
- European Privacy Officials Push for Answers on Status of U.S. Privacy (Jun. 13, 2017) +
- EPIC Urges Senate Committee To Reform Surveillance Law (Jun. 6, 2017) +
- EPIC, Privacy Coalition Meet with EU Data Protection Supervisor (Apr. 21, 2017) +
- European Parliament Expresses Alarm Over Rollback of US Privacy Safeguards (Apr. 6, 2017) +
- NGOs Continue Campaign Against Privacy Shield (Mar. 2, 2017) +
- EPIC Urges House Committee To Ensure Transparency, Public Reporting in Surveillance Law (Mar. 1, 2017) +
- EPIC in Court: Irish High Court Examines EU-US Data Transfers (Mar. 1, 2017) +
- European Privacy Officials Raise Concerns About US Immigration Executive Order (Feb. 22, 2017) +
- Senators Calls for Answers from Secretary Kelly on Privacy Act Exclusion (Feb. 9, 2017) +
- EPIC Participates in Irish Case on Future of EU-US Data Transfers (Feb. 6, 2017) +
- US Designates Countries Covered Under the Judicial Redress Act (Jan. 23, 2017) +
- White House Publishes Privacy Report, Data Breaches Continue to Rise, as Obama Leaves Office (Jan. 19, 2017) +
- EPIC Tells Senate to Probe Commerce Nominee on Data Protection, Privacy Shield (Jan. 18, 2017) +
- New Study Shows Global Increase in Comprehensive Privacy Protections (Nov. 29, 2016) +
- Second Legal Challenge Launched Against "Privacy Shield" (Nov. 3, 2016) +
- Privacy Advocates Challenge EU-US Data Transfer Agreement (Oct. 27, 2016) +
- Reuters: US Government Issued Secret Order to Yahoo to Scan All E-mails (Oct. 4, 2016) +
- Privacy Shield Sign-ons Begin (Aug. 2, 2016) +
- Irish Court Approves EPIC as Amicus in Schrems Case (Jul. 19, 2016) +
- European Commission Signs Off on Flawed "Privacy Shield" (Jul. 12, 2016) +
- Privacy Shield Revisions Fail to Satisfy Legal Requirements (Jun. 29, 2016) +
- EPIC's Rotenberg Outlines Need for International Privacy Framework (Jun. 17, 2016) +
- Top European Privacy Official Rejects EU-US "Privacy Shield" (May. 31, 2016) +
- European Parliament Requires Changes to Privacy Shield (May. 26, 2016) +
- TACD Opposes "Privacy Shield," Urges Rejection by EU (Apr. 7, 2016) +
- EPIC's Rotenberg Urges European Parliament to Condition "Privacy Shield' on End of 702 Surveillance (Mar. 17, 2016) +
- NGOs - "Privacy Shield" is Failed Approach for EU-US Data Protection (Mar. 16, 2016) +
- "Privacy Shield" Released, New Questions Raised (Feb. 29, 2016) +
- European Commission Wrongly Denies EPIC's Request For "Privacy Shield" (Feb. 26, 2016) +
- Department of Commerce: Privacy Shield "does not exist" (Feb. 10, 2016) +
- EPIC Seeks Release of "Privacy Shield," Secret Data Transfer Agreement (Feb. 4, 2016) +
- Privacy Commissioners to Review "Privacy Shield" (Feb. 3, 2016) +
- Anticipating Annulment, EU-US Negotiators Sign Off on "Privacy Shield" (Feb. 2, 2016) +
- Schrems Responds to US Lobby Groups on Safe Harbor (Jan. 29, 2016) +
- "Clock is ticking" on Safe Harbor, says European Consumer Organization (Jan. 29, 2016) +
- EPIC v. DOJ: EPIC Prevails, DOJ Releases Secret EU-US Umbrella Agreement (Jan. 25, 2016) +
- EPIC Urges Senate to Postpone Action on Judicial Redress Act (Jan. 16, 2016) +
- EPIC Seeks Default Judgment in Umbrella Agreement Lawsuit (Jan. 6, 2016) +
- European Institutions Conclude Data Protection Reform (Dec. 15, 2015) +
- Senate Postpones Action on Weak EU-US Privacy Measure (Dec. 12, 2015) +
- Austrian Supreme Court to Consider Schrems' Case against Facebook (Dec. 4, 2015) +
- Schrems Pursues Legal actions to Block Data Transfers to the US (Dec. 2, 2015) +
- NGOs Reject "Safe Harbor 2.0," Urge EU and US to Protect Fundamental Rights (Nov. 12, 2015) +
- European Commission Issues Guidance on Data Transfers Post-Schrems (Nov. 6, 2015) +
- EPIC Sues for Release of Secret EU-US "Umbrella Agreement" (Nov. 4, 2015) +
- EPIC to Call For Comprehensive Overhaul of U.S. Privacy Law (Nov. 2, 2015) +
- Civil Society Leaders in Amsterdam Issue Declaration on Fundamental Rights (Oct. 28, 2015) +
- After FOI Request, EPIC Obtains Secret "Umbrella Agreement" from the EU Commission (Oct. 23, 2015) +
- House Passes Faux Privacy Bill (Oct. 21, 2015) +
- Case Against Facebook Moves Forward in Ireland (Oct. 20, 2015) +
- European Data Protection Authorities Conclude Data Transfers under Safe Harbor Now Unlawful (Oct. 17, 2015) +
- European Court Strikes Down "Safe Harbor," Focus Shifts to Adequacy of US Privacy Laws (Oct. 6, 2015) +
- EPIC Expresses Support for Advocate General Opinion in Schrems Case (Sep. 28, 2015) +
- Decision by EU Legal Advisor Signals End of "Safe Harbor" (Sep. 23, 2015) +
More top news
Data Protection Commissioner v. Facebook & Max Schrems is a follow up case to the landmark Court of Justice for the European Union (CJEU) ruling striking down the "Safe Harbor" arrangement for transferring personal data of EU consumers from the EU and the United States. This case, now before the CJEU, was brought by the Irish Data Protection Commissioner in Irish High Court. The case concerns whether transferring data to the United States using a different legal mechanism, "standard contractual clauses," violates the European Charter of Fundamental Rights.
Following the CJEU ruling invalidating "Safe Harbor" (promptly replaced by a similarly flawed EU-US "Privacy Shield" pact), Austrian privacy activist Schrems filed a renewed complaint with the Irish DPC based on Facebook’s use of standard contractual clauses (SCCs); to authorize EU-US data transfers. If a country does not have an adequate level of privacy protection, EU law still permits personal data to be transferred abroad where another legal mechanism, can provide sufficient data privacy safeguards. Mechanisms approved by the European Commission include certain "standard contractual clause." However, Schrems contended that U.S. surveillance law is not in line with the requirements laid down by EU law including the judgment of the CJEU in the Safe Harbor decision, resulting in a violation of European fundamental rights notwithstanding the use of SCCs. The Irish DPC began an investigation into two key issues: does the US provide adequate legal protection to EU users whose data is transferred, and, if not, could SCCs used by Facebook Ireland and Facebook, Inc. to regulate the transfer of that data raise the level of protection and still render transfer permissible? The DPC determined that US law fails to adequately provide legal remedies to EU citizens and the SCCs did not provide an adequate remedy above and beyond that shortcoming. The Irish DPC brought suit in Irish High Court, asking referral to the CJEU on the question of whether the SCCs violated EU fundamental rights. EPIC was designated the sole US amicus in that case and provided detailed submissions on US surveillance and privacy law.
On October 3, 2017, the High Court ruled that there were "well founded" concerns that SCCs violate European fundamental rights, would the case to the CJEU. The High Court formally referred the case to the CJEU on April 12, 2018. The referral asked eleven questions of the CJEU to determine whether the SCC's are invalid.
In circumstances in which personal data is transferred by a private company from a European Union (EU) member state to a private company in a third country for a commercial purpose pursuant to Decision 2010/87/EU1 as amended by Commission Decision 2016/22972 (“the SCC Decision”) and may be further processed in the third country by its authorities for purposes of national security but also for purposes of law enforcement and the conduct of the foreign affairs of the third country, does EU law (including the Charter of Fundamental Rights of the European Union (“the Charter”)) apply to the transfer of the data notwithstanding the provisions of Article 4(2) of TEU in relation to nationalsecurity and the provisions of the first indent of Article 3(2) of Directive 95/46/EC3 (“the Directive”) in relation to public security, defence and State security?
(1) In determining whether there is a violation of the rights of an individual through the transfer of data from the EU to a third country under the SCC Decision where it may be further processed for national security purposes, is the relevant comparator for the purposes of the Directive: a) The Charter, TEU, TFEU, the Directive, ECHR (or any other provision of EU law); or b) The national laws of one or more member states?
(2) If the relevant comparator is b), are the practices in the context of national security in one or more member states also to be included in the comparator?
When assessing whether a third country ensures the level of protection required by EU law to personal data transferred to that country for the purposes of Article 26 of the Directive, ought the level of protection in the third country be assessed by reference to:
a) The applicable rules in the third country resulting from its domestic law or international commitments, and the practice designed to ensure compliance with those rules, to include the professional rules and security measures which are complied with in the third country; OR
b) The rules referred to in a) together with such administrative, regulatory and compliance practices and policy safeguards, procedures, protocols, oversight mechanisms and non judicial remedies as are in place in the third country?
Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the US under the SCC Decision does this violate the rights of individuals under Articles 7 and/or 8 of the Charter?
Given the facts found by the High Court in relation to US law, if personal data is transferred from the EU to the US under the SCC Decision:
a) Does the level of protection afforded by the US respect the essence of an individual’s right to a judicial remedy for breach of his or her data privacy rights guaranteed by Article 47 of the Charter?
If the answer to a) is yes,
b) Are the limitations imposed by US law on an individual’s right to a judicial remedy in the context of US national security proportionate within the meaning of Article 52 of the Charter and do not exceed what is necessary in a democratic society for national security purposes?
(1) What is the level of protection required to be afforded to personal data transferred to a third country pursuant to standard contractual clauses adopted in accordance with a decision of the Commission under Article 26(4) in light of the provisions of the Directive and in particular Articles 25 and 26 read in the light of the Charter?
(2) What are the matters to be taken into account in assessing whether the level of protection afforded to data transferred to a third country under the SCC Decision satisfies the requirements of the Directive and the Charter?
Does the fact that the standard contractual clauses apply as between the data exporter and the data importer and do not bind the national authorities of a third country who may require the data importer to make available to its security services for further processing the personal data transferred pursuant to the clauses provided for in the SCC Decision preclude the clauses from adducing adequate safeguards as envisaged by Article 26(2) of the Directive?
If a third country data importer is subject to surveillance laws that in the view of a data protection authority conflict with the clauses of the Annex to the SCC Decision or Article 25 and 26 of the Directive and/or the Charter, is a data protection authority required to use its enforcement powers under Article 28(3) of the Directive to suspend data flows or is the exercise of those powers limited to exceptional cases only, in light of Recital 11 of the Directive, or can a data protection authority use its discretion not to suspend data flows?
(1) For the purposes of Article 25(6) of the Directive, does Decision (EU) 2016/12504 (“the Privacy Shield Decision”) constitute a finding of general application binding on data protection authorities and the courts of the member states to the effect that the US ensures an adequate level of protection within the meaning of Article 25(2) of the Directive by reason of its domestic law or of the international commitments it has entered into?
(2) If it does not, what relevance, if any, does the Privacy Shield Decision have in the assessment conducted into the adequacy of the safeguards provided to data transferred to the United States which is transferred pursuant to the SCC Decision?
Given the findings of the High Court in relation to US law, does the provision of the Privacy Shield ombudsperson under Annex A to Annex III of the Privacy Shield Decision when taken in conjunction with the existing regime in the United States ensure that the US provides a remedy to data subjects whose personal data is transferred to the US under the SCC Decision that is compatible with Article 47 of the Charter?
Does the SCC Decision violate Articles 7, 8 and/or 47 of the Charter?
The Irish High Court accepted EPIC's application to participate in the case below as the only NGO from the United States to provide a counterbalancing perspective on U.S. surveillance law to the views offered by the U.S. Government. EPIC has participated as an amicus before international courts. For instance, EPIC joined a case before the European Court of Human Rights concerning the activities of British and U.S. intelligence organizations. EPIC has also appeared as a "friend of the court" in almost 100 cases in the United States concerning emerging privacy and civil liberties issues.
EPIC has a long history in the policy debate over data transfers between the EU and the US, advocating for adequate safeguards for transatlantic data transfers. EPIC and a coalition of EU and U.S. consumer organizations have opposed the Privacy Shield arrangement for its failure to comply with the terms set out by the CJEU in its Safe Harbor decision. Speaking before the European Parliament, Marc Rotenberg outlined several flaws in the agreement, including a weak privacy framework, lack of enforcement, and a cumbersome redress mechanism. In testimony before Congress, EPIC also criticized the prior Safe Harbor Arrangement for its lack of effective means of enforcement, redress, and accountability for privacy violations.
- EPIC, Max Schrems v Data Protection Commissioner (CJEU, "Safe Harbor" case)
- EPIC, Data Protection Commissioner v. Facebook & Max Schrems (Irish High Court, Standard Contractual Clauses case)
- EPIC Submissions to the Irish High Court, Data Protection Commissioner v. Facebook & Max Schrems (Feb. 27, 2017)
- EPIC, General Data Protection Regulation
- EPIC, Privacy Shield EU-U.S. Data Transfer Arrangement
- EPIC, Statement to House Appropriations Committee (Mar. 20, 2018)
- European Commission, Commission Implementing Decision of 12.7.2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield
- European Commission, Annexes to the Commission Implementing Decision (July 12, 2016)
- US Department of Commerce, EU-US Privacy Shield Framework Principles
- US Department of Commerce, EU-US Privacy Shield Framework Principles
- Article 29 Working Party, Report on EU-US Privacy Shield Annual Review (Nov. 28, 2017)
- Press Release,EU-US Privacy Shield data exchange deal: US must comply by 1 September, say MEPs (June 12, 2018)
- Alan Butler, United States of America ∙ Whither Privacy Shield in the Trump Era? EDPL (2017)
Relevant CJEU Caselaw
- Schrems v. Data Protection Commissioner, C‑362/14 (2015)
- Digital Rights Ireland and Others, C‑293/12 and C‑594/12 (2014)
- Google Spain v. AEPD, C‑131/12 (2014)
- Commission v Hungary, C‑288/12 (2014)
- Unibet (London) Ltd and Unibet (International) Ltd v. Justitiekanslern, case C-432/05 (2007)
- Justin Hemmings, European Parliament’s Civil Liberties Committee Targets EU-U.S. Privacy Shield, Cloud Act, JD Supra (June 14, 2018)
- Natasha Lomas, Pressure mounts on EU-US Privacy Shield after Facebook-Cambridge Analytica data scandal, Tech Crunch (June 12, 2018)
- Rebecca Hill, EU-US Privacy Shield not up to snuff, data tap should be turned off - MEPs, Register (June 12, 2018)
- Thomas Shaw, Revamping Contracts For GDPR: You're Just Getting Started, Law360 (June 7, 2018)
- Mary Carolan, High Court rejects Facebook bid to stall European court action, Irish Times (May 2, 2018)
- Natasha Lomas, Facebook denied a stay to Schrems II privacy referral, TechCrunch (May 2, 2018)
- Eleven questions from Schrems case to be referred to CJEU, Scottish Legal News (Apr. 13, 2018)
- Rebecca Hill, Schrems' Facebook case edges closer to ruling over EU-US data flows, Register (Apr. 12, 2018)
- Thomas Shaw, A deep dive into the 'Schrems II' case, IAPP (Feb. 27, 2018)
- Kevin Cahill, Max Schrems’s mass surveillance complaint knocked back another year or two by Irish judge, Computer Weekly (October 2017)
- Mary Carolan, High Court to rule on landmark data privacy case next week, Irish Times (Sept. 28, 2017)
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