Data Transfers

In 2013, Edward Snowden publicly disclosed that US Intelligence Agencies have access to the personal data of European users via surveillance programs such as PRISM or Upstream. These disclosed documents also listed a number of companies that are providing data to the US government for surveillance programs, including Apple, Microsoft, Facebook, Google and Yahoo. Following the Snowden disclosures, Max Schrems filed a complaint against Facebook Ireland Ltd before the Irish Data Protection Commissioner (DPC), arguing that Facebook may not transfer his personal data to the US anymore, given that Facebook USA has to provide that data to the US secret services without adequate protection.

After lengthy back and forth between the DPC, Facebook and Max Schrems, the case was referenced to the Court of Justice of the European Union (CJEU). In a groundbreaking judgment in 2015 the CJEU declared the first legal instrument (“Safe Harbor”) invalid. In 2019, the CJEU also declared “Privacy Shield” (the successor of Safe Harbor) invalid and highlighted that Facebook may also not use “Standard Contractual Clauses”, which was another type of transfer mechanism.

At its core, there is a fundamental conflict between US surveillance laws (which demand surveillance of non-US persons) and European data protection laws (which requires privacy protections), that can only be overcome by a common standard for privacy protections, no matter the citizenship. Until such time, it is unlikely that the matter will be resolved.

More information on EU-US Data Transfers

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