A month has passed since the Court of Justice of the European Union invalid the European Commission Decision approving the program "Privacy Shield"Which had replaced the program"Safe harbor” - also invalidated by the Court of Justice in October 2015 - due, in both casos, to the denunciations of the Austrian privacy activist Max Schrems (casos Schrems vs Facebook Ireland known as Schrems I and Schrems II).
As is known, both the Privacy Shield like its predecessor the Safe harbor, designed by the European Commission and the United States Department of Commerce, were one of the existing mechanisms to allow transatlantic personal data transfers to be carried out to the companies adhering to it (currently the program has more than 5.000 companies) since today For now, Europe does not consider that the United States offers a level of protection comparable to that of Europe in terms of data protection.
Schrems' complaints began when, as a result of the Snowden revelations, the Austrian asked Facebook not to transfer his data to its headquarters in the United States since, according to him - and this has also been estimated by the high European court again - The legal system and the practices of "spyware" and surveillance activities carried out by US authorities such as the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) do not guarantee sufficient protection of the personal data transferred. Among the arguments made by the Luxembourg court is the reproach that US surveillance programs such as PRISM or Upstream based on article 702 of the FISA (Foreign Intelligence Surveillance Act) and the Executive Orders of the President in this regard, although they respect certain guarantees, they do not offer European citizens whose data have been transferred rights that they can enforce in court as required by European regulations and its Bill of Rights.
The American Secretary of State for Commerce Wilbur Ross reacted immediately when the sentence was known since, in his words, not only the 7.1 trillion dollars involved in transatlantic trade are at stake, but also the need that data exchanges have for citizens, companies and governments in this time of pandemic, especially since the Privacy Shield program not only helped to transfer data to technology companies but to laboratories, large consumer and industrial companies and a long etc. On August 10, he again launched a joint statement with the European Justice Counselor announcing the will to launch a new program that complies with the requirements of the judgment and allows the transatlantic exchange of data to continue with all legal guarantees given the criticality of said exchanges for the 800 million citizens of both sides of the Atlantic.
Meanwhile, on Monday, August 17, Schrems announced - through his organization NOYB (None of Your Business) from which he has made his modus vivendi- his campaign of 101 complaints (with illustration of Disney's 101 Dalmatians included). The Austrian has filed complaints with all the European data protection authorities against 101 European websites as well as against Google and Facebook since despite "his sentence" (Schrems II) those websites continue to use Google Analytics or Facebook Connect and transfer data to States. United. Among the Spanish companies denounced are the Royal Spanish Academy, edreams or El País de los Juegos-Poki.
But beyond the tremendous legal mess that the Luxembourg ruling has generated and the urgent need not to paralyze transatlantic data transfers, its geopolitical and economic consequences also have an important impact on the technological "cold war" in which Washington is immersed. Thus, with the United States sentenced to little less than a "spy" state and little guarantee of fundamental rights by the European court of Justice, its current presidency is left with few arguments to be able to continue with the boycott that it was carrying out against Huawei and with their pressure on European States so that the Chinese multinational can be one of the suppliers of the future European 5G due to the suspicions - currently unfounded - that this company collaborates with Chinese espionage.
While this new episode of "spies among friends" takes place -paraphrasing the title of Ben Macintyre's excellent novel-, Schrems really discovers himself as the self-centered and fanatic Cruella de Vil of animal fur coats considering that what he wants those 101 "Dalmatians" are now sanctioned. Hopefully regulators and the courts are able to discern between the good and the bad and do not forget the impact these decisions have on citizens, transatlantic trade and our ailing economies.
This article was first published by Expansión (21/08/20)
© Javier Fernandez-Samaniego, 2020
Partner director. SAMANIEGO Law.