Schrems v. Data Protection Commissioner
Two of the most important international privacy cases in recent history arose from complaints against Facebook brought to the Irish Data Protection Commissioner by an Austrian privacy advocate named Max Schrems. In the complaints, Mr. Schrems challenged the transfer of his data (and the data of EU citizens’ generally) to the United States by Facebook, which is incorporated in Ireland. The first Schrems case (“Schrems I”) led the Court of Justice of the European Union on October 6, 2015, to invalidate the Safe Harbor arrangement, which governed data transfers between the EU and the US. After that case was remanded to the Irish data protection authority, the Commissioner filed a second suit (“Schrems II”) in the Irish High Court to determine whether the “standard contractual clauses” used by Facebook to authorize the transfer of personal data to the U.S. post-Safe Harbor provide adequate protection for E.U. citizens. EPIC has been selected by the Irish High Court to provide an amicus submission in Schrems II to “counterbalance” the submission of the U.S. Government.
- New Study Shows Global Increase in Comprehensive Privacy Protections: An updated study by David Banisar of the human rights organization Article 19 finds that over 100 countries now have data protection laws. Another 40 countries are considering new laws, and most countries have established a data protection authority to enforce privacy protections. Two EPIC publications - The Privacy Law Sourcebook 2016 and Privacy and Human Rights: An International Survey of Privacy Laws and Developments - provide an overview of privacy frameworks around the world and track emerging privacy challenges. EPIC has urged the US Congress to establish a federal privacy agency and to enact comprehensive privacy legislation. (Nov. 29, 2016)
- Second Legal Challenge Launched Against "Privacy Shield": La Quadrature du Net, a French privacy organization, has launched a legal challenge to “Privacy Shield,” a controversial framework for the transfer of personal data from Europe to the United States. This lawsuit follows a similar challenge brought by the Irish group Digital Rights Ireland. "Privacy Shield" was the response of EU and US politicians after the European Court of Justice determined that there was insufficient legal protection for transatlantic data transfers. NGOs in the United States and Europe had urged the adoption of a comprehensive framework for data protection and said that Privacy Shield was not adequate. EPIC also testified before Congress on the need to update US privacy law. EPIC is currently participating as amicus curiae in related case brought by privacy advocate Max Schrems. (Nov. 3, 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
The Law of Data Transfers: the Data Protection Directive, Safe Harbor, and Privacy Shield
The Schrems cases address one of the core tensions between EU and US privacy law, and the international agreements and contracts that have been used to address the data protection gap. The key issue in both cases is whether US law ensures adequate protection for personal data, as required to permit international data transfers under EU law.
Unlike in the United States, the default rule in the European Union is that data transfers are prohibited; a transfer of personal data is permitted only if certain criteria are met. The European Data Protection Directive is the EU law embodying this norm. The Directive states that transfer of personal data to a third country may take place only if that country ensures an adequate level of data protection. The Directive also provides that the European Commission may find a third country ensures an adequate level of protection. If the Commission adopts a decision to that effect, the transfer of personal data to the third country concerned may take place.
In July 2000, the European Commission adopted a decision declaring that the United States provides for adequate safeguards for data protection. The decision of the Commission was based on the Safe Harbor framework. The Safe Harbor arrangement consisted of data protection principles to which to which American companies could subscribe voluntarily in order to engage in cross-border data transfers. Thus, the protections for user data relied on the self-assessment and self-certification by private companies.
As is discussed in greater detail below, in October of 2015, the Court of Justice for the European Union ruled that the Safe Harbor framework was invalid.
Shortly thereafter, the EU and US began negotiating a replacement agreement: the EU-US Privacy Shield. The European Commission adopted Privacy Shield on July 12, 2016, and US companies have begun to self-certify and transfer data under the agreement. However, the Privacy Shield shares many of the same problems as the Safe Harbor framework, including the reliance on self-certification by US companies.
Schrems I (Safe Harbor): Max Schrems v. Irish Data Protection Commissioner
This case arose from proceedings before the Irish Data Protection Commissioner (DPC) brought by Max Schrems, an Austrian PhD student and privacy activist.
The data that Mr. Schrems, a Facebook user, provided to Facebook was transferred from Facebook’s Irish subsidiary (Facebook Ireland) to Facebook’s servers located in the United States (Facebook, Inc.). Mr. Schrems lodged a complaint with the Irish data protection authority, taking the view that, in the light of the revelations made in 2013 by Edward Snowden concerning the activities of the United States intelligence services (in particular the National Security Agency), the law and practices of the US offer no real protection against surveillance by the US of the data transferred to that country. The Irish authority rejected the complaint, on the ground, in particular, that in a decision of 26 July 2000 the Commission considered that, under the ‘safe harbour’ scheme, the US ensures an adequate level of protection of the personal data transferred.
Mr. Schrems appealed the decision of the DPC before the Irish High Court. The Court decided to stay the proceedings and to refer the following question to the CJEU for preliminary ruling:
May and/or must the national data protection supervisory authority conduct his or her own investigation of the adequacy of data protection in a third country or the Commissioner is absolutely bound by the Commission’s decision?
On September 23, 2015, Advocate General Yves Bot issued his opinion on the case. The Advocate General's opinion indicated that the Safe Harbor arrangement, which permitted the transfer of personal data from the EU to the US, must end because the arrangement failed to provide the requisite legal protection under EU law and thus "must be declared invalid." The CJEU issued its ruling on October 6, 2015, agreeing with the Advocate and invalidating Safe Harbor. The Court ruled that (1) national data protection authorities have the right to investigate the adequacy of data transfers under the EU-US Safe Harbor arrangement or any other arrangements concluded pursuant to an adequacy decision by the European Commission for that matter, and (2) the Safe Harbor arrangement should be invalid due to the lack of adequacy.
Schrems II (Standard Contractual Clauses): Irish Data Protection Commissioner v. Facebook and Max Schrems
Following the CJEU ruling, Mr. Schrems filed a renewed complaint with the Irish DPC based on Facebook’s use of “standard contractual clauses” to authorize EU-US data transfers, which provided the basis for a new case in the Irish High Court. Soon after the CJEU decision, the Irish High Court quashed the Irish DPC’s previous decision not to investigate Facebook Ireland regarding the allegations in Mr. Schrems’s first complaint. The Irish DPC then commenced an investigation. The Irish DPC considered two key issues: does the US provide adequate legal protection to EU users whose data is transferred, and, if not, could standard contractual clauses (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? Simultaneously, Mr. Schrems updated his complaint with the DPC against Facebook, and he 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. The CJEU found that the US must make changes to its “domestic laws” and “international commitments” in order to provide essentially equivalent privacy and data protection to the European Union. Additionally, Mr. Schrems argued the SCCs fail to provide the adequate legal protection necessary to otherwise permit data transfers.
In May of 2016, the Irish DPC issued a Draft Decision announcing its preliminary position: that US law fails to adequately provide legal remedies to EU citizens and the SCCs could not address the deficiency in US law. As a result, the Irish DPC suggested the contractual clauses at issue were invalid under EU law. However, the Irish DPC found that, as a representative of one nation in the EU with limited authority, it did not have the ability to declare the clauses invalid under EU law; the Irish DPC argued that standard contractual clauses issued under the broader authority of the European Commission had been deemed by that Commission to authorize data transfers. The Irish DPC argued that, without a finding that the clauses are indeed invalid, they cannot complete its investigation into Facebook.
As a result, the Irish DPC brought the case back before the Irish High Court and is seeking a preliminary ruling from the CJEU on the validity of the standard contractual clauses. The High Court named EPIC amicus curiae in the case, which will be heard in February 2017.
The Irish High Court accepted EPIC's application to participate in Schrems II as the only NGO from the United States. EPIC will provide the Irish Court, and likely the CJEU, with a perspective on U.S. surveillance law to “counterbalance” the views offered by the U.S. Government. EPIC recently joined a case before the European Court of Human Rights concerning the activities of British and U.S. intelligence organizations. EPIC has appeared as a "friend of the court" in almost 100 cases in the United States concerning emerging privacy and civil liberties issues.
EPIC has provided expert opinion to decision makers during the negotiations about data transfers between the EU and the US. EPIC has urged both sides to respect the decision of the Court of Justice of the European Union in the Safe Harbor case and provide adequate protections for personal data in transatlantic transfers. EPIC and a coalition of EU and U.S. consumer organizations have opposed the Privacy Shield arrangement.
Speaking before the European Parliament on "Privacy Shield," Marc Rotenberg outlined several flaws in the proposed EU-US data transfer agreement, including a weak privacy framework, lack of enforcement, and a cumbersome redress mechanism. In the short term, Rotenberg recommended that the EU condition acceptance of the Privacy Shield on the end of the "702 program," which permits bulk surveillance on Europeans by the US.
In ACLU v Clapper EPIC petitioned the Supreme Court to halt the disclosure of the telephone records of millions of Americans, arguing that FISC did not have statutory authority to compel Verizon to turn over all domestic telephone metadata to the National Security Administration (NSA).
As a member of the Trans Atlantic Consumer Dialogue (TACD), EPIC has been advocating for adequate safeguards for transatlantic data transfers and the revision of the Safe Harbor arrangement. Since its formation in 1998, TACD has developed into a thriving network of over 75 leading organizations representing the consumer interest on both sides of the Atlantic. TACD previously criticized Safe Harbor for its lack of effective means of enforcement, redress, and accountability for privacy violations. The has called upon the US to develop legal means to safeguard the privacy of US consumers based on Fair Information Practices as articulated in the 1980 OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. Most recently, the TACD counseled against the adoption of the Privacy Shield, urging the US to first put in place an enforceable, comprehensive legal framework supporting privacy.
- Irish Data Protection Commissioner
- Schrems Complaint to the DPC (June 25, 2013)
- High Court Reference to the CJEU for Preliminary Ruling (July 17, 2014)
- CJEU, Case C‑362/14
- Advocate General's Opinion on Case C-362/14 Maximillian Schrems v Data Protection Commissioner (Sept 23, 2015)
- Ruling on Safe Harbor (October 6, 2015)
- Irish Data Protection Commissioner
- Irish High Court, No. 2016 4809P
- DPC Application for Reference to CJEU for Preliminary Ruling (July 4, 2016)
- Judgment on Amici Interventions (July 19, 2016)
- Schrems Defence (Sept. 9, 2016)
- Facebook Defence (Sept. 23, 2016)
- EPIC Amicus Affidavit (Nov. 11, 2016)
- EPIC webpage, EU Data Protection Directive (2016)
- EPIC webpage, Privacy Shield EU-U.S. Data Transfer Arrangement (2016)
- EPIC webpage, Max Schrems v Irish Data Protection Commissioner (Safe Harbor), (2016)
- European Commission, Model Contracts for the transfer of personal data to third countries (2016)
- Courts Service Ireland, High Court (2016)
- 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
- Annexes to the Commission Implementing Decision (July 12, 2016)
- EU-US Privacy Shield Framework Principles issued by the US Department of Commerce
- Europe v Facebook, US Government wants to intervene in European Facebook Case (June 13, 2016)
- TACD, TACD Resolution on the EU-U.S. Privacy Shield Proposal
- (April 7, 2016)
- Commission Communication on the Transfer of Personal Data from the EU to the United States of America under Schrems (November 6, 2015)
- EPIC's Testimony before Congress on Safe Harbor (November 3, 2015)
- Max Schrems, First Thoughts on Decision C-362/14, Europe v Facebook (October, 2015)
- Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).
- Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7).
- Europe v Facebook website
- Safe Harbor Framework
- Marc Rotenberg, Anna Fielder, Jeff Chester, Letters to the Editor of the New York Times on Digital Privacy, in the U.S. and Europe (October, 2015)
- Max Schrems, First Thoughts on Decision C-362/14, Europe v Facebook (October, 2015)
- EU and US organisations welcome the European Court of Justice Safe Harbor Ruling, TACD (October 15, 2015)
- EPIC, Decision by EU Legal Advisor Signals End of "Safe Harbor" (September 23, 2015)
- EPIC, EPIC Expresses Support for Advocate General Opinion in Schrems Case (September 28, 2015)
- EPIC, Advocate General Correctly Determines that Safe Harbor Fails to Protects Privacy and Does Not Establish Trust, Threatening Data Flows that Underpin Transatlantic Trade (September 28, 2015)
- Simon Davies, Five uncomfortable facts about the CJEU Safe Harbour decision, Privacy Surgeon (October, 2015)
- Dr Gus Hosein, There is no Safe Harbour from U.S. Authorities, Privacy International (October 6, 2015)
- Joe McNamee, Fifteen years late, Safe Harbor hits the rocks, European Digital Rights (October 6, 2015)
- BEUC, Historic victory for Europeans’ personal data rights, BEUC (October 6, 2015)
- TACD, TACD Statement in Response to European Court of Justice Safe Harbour Ruling, TACD (October 6, 2015)
- Estelle Masse, How safe is the “Safe Harbour”? A close look at the “Schrems” case on the eve of the ruling, access (October 6, 2015)
- Joe Uchill, US to Join Irish Facebook Case, The Hill (July 19, 2016)
- RTE News, US govt can join legal action over data transfers - High Court (July 19, 2016)
- Glyn Moody, In “an unusual move,” US government asks to join key EU Facebook privacy case, Ars Technica (June 13, 2016)
- Cryptic Safe Harbor Pact 'Privacy Shield': Public, Possibly Soon, Forbes, February 6, 2016
- EU-US Privacy Shield offers flimsy protection, InfoWorld, February 5, 2016
- The new Safe Harbor agreement: Will it survive Europe’s paranoia?, American Enterprise Institute, February 5, 2016
- U.S. and European Officials Fail to Reach Agreement for New Data Transfer Deal, JDSupra, February 4, 2016
- U.S. and Europe in ‘Safe Harbor’ Data Deal, but Legal Fight May Await, New York Times, February 2, 2016
- Negotiators miss deadline for transatlantic data agreement, The Hill, February 1, 2016
- EU lawmakers skeptical new data deal will hold up in court, The Hill, February 1, 2016
- EU-US Safe Harbor: Judicial Redress Act Vote Delayed, Forbes, January 21, 2016
- EU regulators could freeze data transfers with US, The Hill, January 21, 2016
- EU wants tougher privacy controls in new Safe Harbor, The Hill, January 19, 2016
- Glyn Moody, Safe Harbor 2.0 framework begins to capsize as January deadline nears, ars technica (November 16, 2015)
- Jacob Fischler, Fortify New US-EU Data Transfer Pact, Privacy Groups Urge, Law360 (November 16, 2015)
- Natalia Drozdiak and Stephen Fidler, EU Justice Chief Vera Jourova Speaks on Negotiating New Safe Harbor Pact, The wall Street Journal (November 12, 2015)
- NGOs Reject "Safe Harbor 2.0", Urge EU and US to Protect Fundamental Rights (November 12, 2015)
- Brooke Gladstone, Safe Harbor No More, NPR OnTheMedia (October 16, 2015)
- Safe Harbour ruling: MEPs called for clarity and effective protection, European Parliament Justice and Home Affairs (October 15, 2015)
- Robert Levine, Behind the European Privacy Ruling That’s Confounding Silicon Valley, The New York Times (October 9, 2015)
- Julia Powles, Tech companies like Facebook not above the law, says Max Schrems, The Guardian (October, 2015)
- Amie Stepanovich, Opinion: With pervasive government surveillance, there are no safe harbors, The Christian Science Monitor (October 8, 2015)
- Elizabeth Weise, Europe's top court rejects 'Safe Harbor' ruling, USA Today (October 6, 2015)
- Andrew Griffin, Jamie Merrill, European court rules 'Safe Harbour' treaty that saw Facebook hand over user data to US is invalid, after challenge by student, Independent (October 6, 2015)
- World Wide Web Foundation, Privacy before Profit: European Court of Justice Rules “Safe Harbor” is invalid (October 6, 2015)
- TV Interview with Max Schrems, ORF TVTECH (October 6, 2015)
- Leo Kelion, Facebook data transfers threatened by Safe Harbour ruling , BBC (October 6, 2015)
- European Digital Rights, Safe Harbor: European Court Advocate General says Agreement should be declared invalid (September 23, 2015)
- Mark Scott, European Court Adviser Calls Trans-Atlantic Data-Sharing Pact Insufficient, The New York Times (September 23, 2015)
- Owen Bowcott, Facebook case may force European firms to change data storage practices, The Guardian (September 23, 2015)
- Yves Eudes, Pourquoi l’accord Safe Harbor sur les données personnelles cristallise les tensions, Le Monde (September 25, 2015)
- Patrick Beuth, Facebook braucht eninen Plan B, Die Zeit (September 23, 2015)
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Communications Law and Policy
Jerry Kang and Alan Butler