Tag: ECJ

ECJ Rules EU-US Safe Harbor Programme Is Invalid

The powers of EU data protection authorities are significantly strengthened by the decision, allowing them to suspend some or all personal data flows into the United States in certain circumstances.

In Maximillian Schrems v. Data Protection Commissioner (case C-362/14), the European Court of Justice (ECJ) has ruled[1] that the European Commission decision approving the Safe Harbor programme is invalid. Further, the ECJ ruled that EU data protection authorities do have powers to investigate complaints about the transfer of personal data outside Europe (whether by Safe Harbor-certified organisations or otherwise, but excluding countries deemed as having “adequate” data protection laws according to the EU). Finally, the ECJ ruled that data protection authorities can, where justified, suspend data transfers outside Europe until their investigations are completed.

Safe Harbor Programme

According to the European Commission, the United States is a country with “inadequate” data protection laws. The European Commission and the US Department of Commerce, therefore, agreed in 2000 to a self-certification programme for US organisations that receive personal data from Europe. Pursuant to the self-certification programme, a US organisation receiving personal data from Europe must certify that it adhered to certain standards of data processing comparable with EU data protection laws such that the EU citizens’ personal data was treated as adequately as if their personal data had remained in Europe. The Safe Harbor programme is operated by the US Department of Commerce and enforced by the Federal Trade Commission. Over 4,000 organisations have current self-certifications of adherence to Safe Harbor principles.[2]

The Schrems Case

Mr. Schrems complained in Irish legal proceedings that the Irish Data Protection Commissioner refused to investigate his complaint that the Safe Harbor programme failed to protect adequately personal data after its transfer to the US in light of revelations about the National Security Agency’s (NSA’s) PRISM programme. The question of whether EU data protection authorities have the power to investigate complaints about the Safe Harbor programme was referred to the ECJ. Yves Bot, Advocate General at the ECJ, said in an opinion released on 23 September 2015 that the Safe Harbor programme  does not currently do enough to protect EU citizens’ personal data because such data was transferred to US authorities in the course of “mass and indiscriminate surveillance and interception of such data” from Safe Harbor-certified organisations. Mr. Bot was of the opinion that the Irish Data Protection Commissioner, therefore, had the power to investigate complaints about Safe Harbor-certified organisations and, if there were “exceptional circumstances in which the suspension of specific data flows should be justified”, to suspend the data transfers pending the outcome of its investigation.

The ECJ followed Mr. Bot’s opinion and, further, declared that the European Commission’s decision to approve the Safe Harbor programme in 2000 was “invalid” on the basis that US laws fail to protect personal data transferred to US state authorities pursuant to derogations of “national security, public law or law enforcement requirements”. Furthermore, EU citizens do not have adequate rights of redress when their personal data protection rights are breached by US authorities.

The EU-US Data Protection Umbrella Agreement

In the last two years, the European Commission and various data protection working parties have discussed ways to improve the Safe Harbor programme and strengthen rights for EU citizens in cases where their personal data is transferred to the United States. Recently, the United States and European Union finalised a data protection umbrella agreement to provide minimum privacy protections for personal data transferred between EU and US authorities for law enforcement purposes. The umbrella agreement will provide certain protections to ensure that personal data is protected when exchanged between police and criminal justice authorities of the United States and the European Union. The umbrella agreement, however, does not apply to personal data shared with national security agencies.

The umbrella agreement also provides that EU citizens will have the right to seek judicial redress before US courts where US authorities deny access or rectification or unlawfully disclose their personal data. Currently, US citizens have the right to seek judicial redress in the European Union if their data—transferred for law enforcement purposes—is misused by EU law enforcement authorities. EU citizens, however, do not have corresponding rights of redress in the United States. A judicial redress bill has been introduced in the US House of Representatives; adoption of the bill would allow the United States and European Union to finalise the umbrella agreement.

Key Findings of the ECJ Decision

The key findings of the ECJ decision are as follows (quotes indicate excerpts from the ruling itself):

“The guarantee of independence of national supervisory authorities is intended to ensure the effectiveness and reliability of the monitoring of compliance with the provisions concerning protection of individuals”.

The powers of supervisory authorities include “effective powers of intervention, such as that of imposing a temporary or definitive ban on processing of data, and the power to engage in legal proceedings”.

The Safe Harbor programme “cannot prevent persons whose personal data has been or could be transferred to a third country from lodging with the national supervisory authorities a claim. . .concerning the protection of their rights and freedoms”.

National courts can consider the validity of the Safe Harbor programme, but only the ECJ can declare that it is invalid.

Where the national data protection authorities find that complaints regarding the protection of personal data by Safe Harbor-certified companies are well-founded, they “must. . .be able to engage in legal proceedings”.

Organisations self-certified under the Safe Harbor programme are permitted to “disregard” the Safe Harbor principles to comply with US national security, public interest, or law enforcement requirements.

There is no provision in the Safe Harbor programme for protection for EU citizens against US authorities who gain access to their personal data transferred to the United States pursuant to the Safe Harbor programme. There is only a provision for commercial dispute resolution.

The EU Data Protection Directive[3] “requires derogations and limitations in relation to the protection of personal data to apply only in so far as is strictly necessary”, but there is no such requirement applicable in the United States following the transfer of personal data pursuant to the Safe Harbor programme.

The Safe Harbor programme “fails to comply with the requirements” to protect personal data to the “adequate” standard required by the EU Data Protection Directive and is “accordingly invalid”.

Other Options to Transfer Personal Data to the United States

Safe Harbor-certified organisations should note that there are other options to transfer personal data to the United States, including express consent and the use of Binding Corporate Rules or EU-approved model clause agreements. Organisations using Safe Harbor-certified vendors may wish to discuss these other options with their vendors. There is, however, a risk that this decision could affect these other options, as national security derogations are likely to override the protection of personal data regardless of how it is transferred, with the only exception being the specific and informed consent of an individual to the transfer of his or her personal data to governmental authorities for national security purposes.

Conclusion

The ECJ decision is likely to take the European Commission by surprise.

The powers of national data protection authorities are significantly strengthened by this decision. They could allow data protection authorities to suspend some or all personal data flows into the United States in serious circumstances and where there is a justifiable reason to do so. There is a risk that a data protection authority could order that the data transfers by an international organisation outside of Europe be suspended from that jurisdiction, whereas data transfers in other European jurisdictions are permitted. To mitigate this risk, the European Commission is entitled to issue EU-wide “adequacy decisions” for consistency purposes.

The European Commission has today announced that it intends to release guidance for Safe Harbor-certified companies within the next two weeks.

Article By Stephanie A. “Tess” Blair, Dr. Axel Spies & Pulina Whitaker of Morgan, Lewis & Bockius LLP
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

[1] See Judgment of the Court (Grand Chamber) (6 October 2015)

[2] See Safe Harbor List.

[3] Directive 95/46/EC

Google, the House of Lords and the timing of the EU Data Protection Regulation

Mintz Levin Law Firm

(LONDON) Could the European Court of Justice’s May 13, 2014 Google Spain decision delay the adoption of the EU Data Protection Regulation?

In the Google Spain “Right to be Forgotten” case, the ECJ held that Google must remove links to a newspaper article containing properly published information about a Spanish individual on the basis that the information is no longer relevant.  The Google Spain decision has given a much sharper focus to the discussion about the Right to be Forgotten that may soon be adopted as part of the new Data Protection Regulation that is expected to be passed sometime in 2015.  With the advent of the Google Spain decision, an issue that was on the sideline for most businesses – and which was expected by some to be quietly dropped from the draft Data Protection Regulation – has become a hot political issue.  The Right to be Forgotten as interpreted by the ECJ has garnered international attention, deepened the UK/continental EU divide, and ultimately could delay the adoption of a final form of the Data Protection Regulation.

The Google Spain case has been controversial for various reasons.  The decision takes an expansive approach to the long-arm reach of EU data protection law.  It holds search engine providers liable to comply with removal requests even when the information in the search results is true, was originally published legally and can continue to be made available by the original website.  The decision makes the search engine provider the initial arbiter of whether the individual’s right to have his or her information removed from publically available search results is outweighed by the public’s interest in access to that information.   (For a pithy analysis of the “public record” aspects of the case, see John Gapper’s “Google should not erase the web’s memory” published in the Financial Times.)

Google started implementing the ruling almost immediately, but only with respect to search results obtained through the use of its country-specific versions of its search engine, such aswww.google.es or www.google.co.uk.  The EU-specific search engine results notify users when some results have been omitted due to EU’s Right to be Forgotten.  (See the Telegraph’s ongoing list of the stories it has published that have been deleted from Google.co.uk’s search results to get a flavor of the sort of search results that have been deleted.)  However, the “generic” version of Google (www.google.com), which is also the default version for users in the US, does not omit the banned results.

Google has been engaged in an ongoing dialogue with EU data protection authorities regarding Google’s implementation of the Google Spain ruling.  According to some media reports, EU officials have complained that Google is implementing the ruling too broadly, allegedly to make a political point, while other commentators have noted that the ruling give Google very few reference points for performing the balancing-of-rights that is required by the ruling.  Perhaps more interestingly, some EU officials want Google to apply the Right to be Forgotten globally (including for google.com results) and without noting that any search results have been omitted (to prevent any negative inferences being drawn by the public based on notice that something has been deleted).  If the EU prevails with regard to removing personal data globally and without notice that the search results contain omissions, critics who are concerned about distortions of the public record and censorship at the regional level will have an even stronger case.   Of course, if truly global censorship becomes legally required by the EU, it seems likely that non-EU governments and organizations will enter the dialogue with a bit more energy – but even more vigorous international debate does not guarantee that the EU would be persuaded to change its views.

The ongoing public debate about the potentially global reach of the Right to be Forgotten is significant enough that it could potentially delay agreement on the final wording of the Data Protection Regulation.  Recently, an important committee of the UK’s House of Lords issued a report deeply critical of the Google Spain decision and the Right to be Forgotten as enshrined in the draft Data Protection Directive. Additionally, the UK’s Minister of Justice, Simon Hughes, has stated publically that the UK will seek to have the Right to be Forgotten removed from the draft Data Protection Regulation.  The impact of the UK’s stance (and the efforts of other Right to be Forgotten critics) on the timing of the adoption of the Regulation remains to be seen.  In the meantime, search companies will continue to grapple with compliance with the Google Spain decision.  Other companies that deal with EU personal data should tune in as the EU Parliament’s next session gets underway and we move inevitably closer to a final Data Protection Regulation. 

ARTICLE BY

Hope S. Foster
 
OF 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.