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Legal clouds gather over US cloud services, after CJEU ruling

Natasha Lomas
·9-min read

In the wake of yesterday's landmark ruling by Europe's top court -- striking down a flagship transatlantic data transfer framework called Privacy Shield, and cranking up the legal uncertainty around processing EU citizens' data in the U.S. in the process -- Europe's lead data protection regulator has fired its own warning shot at the region's data protection authorities (DPAs), essentially telling them to get on and do the job of intervening to stop people's data flowing to third countries where it's at risk.

Countries like the U.S.

The original complaint that led to the Court of Justice of the EU (CJEU) ruling focused on Facebook's use of a data transfer mechanism called Standard Contractual Clauses (SCCs) to authorize moving EU users' data to the U.S. for processing.

Complainant Max Schrems asked the Irish Data Protection Commission (DPC) to suspend Facebook's SCC data transfers in light of U.S. government mass surveillance programs. Instead, the regulator went to court to raise wider concerns about the legality of the transfer mechanism.

That in turn led Europe's top judges to nuke the Commission's adequacy decision, which underpinned the EU-U.S. Privacy Shield -- meaning the U.S. no longer has a special arrangement greasing the flow of personal data from the EU. Yet, at the time of writing, Facebook is still using SCCs to process EU users' data in the U.S. Much has changed, but the data hasn't stopped flowing -- yet.

Yesterday the tech giant said it would "carefully consider" the findings and implications of the CJEU decision on Privacy Shield, adding that it looked forward to "regulatory guidance." It certainly didn't offer to proactively flip a kill switch and stop the processing itself.

Ireland's DPA, meanwhile, which is Facebook's lead data regulator in the region, sidestepped questions over what action it would be taking in the wake of yesterday's ruling -- saying it (also) needed (more) time to study the legal nuances.

The DPC's statement also only went so far as to say the use of SCCs for taking data to the U.S. for processing is "questionable" -- adding that case by case analysis would be key.

The regulator remains the focus of sustained criticism in Europe over its enforcement record for major cross-border data protection complaints -- with still zero decisions issued more than two years after the EU's General Data Protection Regulation (GDPR) came into force, and an ever-growing backlog of open investigations into the data processing activities of platform giants.

In May, the DPC finally submitted to other DPAs for review its first draft decision on a cross-border case (an investigation into a Twitter security breach), saying it hoped the decision would be finalized in July. At the time of writing we're still waiting for the bloc's regulators to reach consensus on that.

The painstaking pace of enforcement around Europe's flagship data protection framework remains a problem for EU lawmakers -- whose two-year review last month called for uniformly "vigorous" enforcement by regulators.

The European Data Protection Supervisor (EDPS) made a similar call today, in the wake of the Schrems II ruling -- which only looks set to further complicate the process of regulating data flows by piling yet more work on the desks of underfunded DPAs.

"European supervisory authorities have the duty to diligently enforce the applicable data protection legislation and, where appropriate, to suspend or prohibit transfers of data to a third country," writes EDPS Wojciech Wiewiórowski, in a statement, which warns against further dithering or can-kicking on the intervention front.

"The EDPS will continue to strive, as a member of the European Data Protection Board (EDPB), to achieve the necessary coherent approach among the European supervisory authorities in the implementation of the EU framework for international transfers of personal data," he goes on, calling for more joint working by the bloc's DPAs.

Wiewiórowski's statement also highlights what he dubs "welcome clarifications" regarding the responsibilities of data controllers and European DPAs -- to "take into account the risks linked to the access to personal data by the public authorities of third countries."

"As the supervisory authority of the EU institutions, bodies, offices and agencies, the EDPS is carefully analysing the consequences of the judgment on the contracts concluded by EU institutions, bodies, offices and agencies. The example of the recent EDPS’ own-initiative investigation into European institutions’ use of Microsoft products and services confirms the importance of this challenge," he adds.

Part of the complexity of enforcement of Europe's data protection rules is the lack of a single authority; a varied patchwork of supervisory authorities is responsible for investigating complaints and issuing decisions.

Now, with a CJEU ruling that calls for regulators to assess third countries themselves -- to determine whether the use of SCCs is valid in a particular use-case and country -- there's a risk of further fragmentation should different DPAs jump to different conclusions.

Yesterday, in its response to the CJEU decision, Hamburg's DPA criticized the judges for not also striking down SCCs, saying it was "inconsistent" for them to invalidate Privacy Shield yet allow this other mechanism for international transfers. Supervisory authorities in Germany and Europe must now quickly agree how to deal with companies that continue to rely illegally on the Privacy Shield, the DPA warned.

In the statement, Hamburg's data commissioner, Johannes Caspar, added: "Difficult times are looming for international data traffic."

He also shot off a blunt warning that: "Data transmission to countries without an adequate level of data protection will... no longer be permitted in the future."

Compare and contrast that with the Irish DPC talking about use of SCCs being "questionable," case by case. (Or the U.K.'s ICO offering this bare minimum.)

Caspar also emphasized the challenge facing the bloc's patchwork of DPAs to develop and implement a "common strategy" toward dealing with SCCs in the wake of the CJEU ruling.

In a press note today, Berlin's DPA also took a tough line, warning that data transfers to third countries would only be permitted if they have a level of data protection essentially equivalent to that offered within the EU.

In the case of the U.S. -- home to the largest and most used cloud services -- Europe's top judges yesterday reiterated very clearly that that is not in fact the case.

"The CJEU has made it clear that the export of data is not just about the economy but people's fundamental rights must be paramount," Berlin data commissioner Maja Smoltczyk said in a statement [which we've translated using Google Translate].

"The times when personal data could be transferred to the U.S. for convenience or cost savings are over after this judgment," she added.

Both DPAs warned the ruling has implications for the use of cloud services where data is processed in other third countries where the protection of EU citizens' data also cannot be guaranteed too, i.e. not just the U.S.

On this front, Smoltczyk name-checked China, Russia and India as countries EU DPAs will have to assess for similar problems.

"Now is the time for Europe's digital independence," she added.

Some commentators (including Schrems himself) have also suggested the ruling could see companies switching to local processing of EU users' data. Though it's also interesting to note the judges chose not to invalidate SCCs -- thereby offering a path to legal international data transfers, but only provided the necessary protections are in place in that given third country.

Also issuing a response to the CJEU ruling today was the European Data Protection Board (EDPB). AKA the body made up of representatives from DPAs across the bloc. Chair Andrea Jelinek put out an emollient statement, writing that: "The EDPB intends to continue playing a constructive part in securing a transatlantic transfer of personal data that benefits EEA citizens and organisations and stands ready to provide the European Commission with assistance and guidance to help it build, together with the U.S., a new framework that fully complies with EU data protection law."

Short of radical changes to U.S. surveillance law, it's tough to see how any new framework could be made to legally stick, though. Privacy Shield's predecessor arrangement, Safe Harbour, stood for around 15 years. Its shiny "new and improved" replacement didn't even last five.

In the wake of the CJEU ruling, data exporters and importers are required to carry out an assessment of a country's data regime to assess adequacy with EU legal standards before using SCCs to transfer data there.

"When performing such prior assessment, the exporter (if necessary, with the assistance of the importer) shall take into consideration the content of the SCCs, the specific circumstances of the transfer, as well as the legal regime applicable in the importer’s country. The examination of the latter shall be done in light of the non-exhaustive factors set out under Art 45(2) GDPR," Jelinek writes.

"If the result of this assessment is that the country of the importer does not provide an essentially equivalent level of protection, the exporter may have to consider putting in place additional measures to those included in the SCCs. The EDPB is looking further into what these additional measures could consist of."

Again, it's not clear what "additional measures" a platform could plausibly deploy to "fix" the gaping lack of redress afforded to foreigners by U.S. surveillance law. Major legal surgery does seem to be required to square this circle.

Jelinek said the EDPB would be studying the judgement with the aim of putting out more granular guidance in the future. But her statement warns data exporters they have an obligation to suspend data transfers or terminate SCCs if contractual obligations are not or cannot be complied with, or else to notify a relevant supervisory authority if it intends to continue transferring data.

In her roundabout way, she also warns that DPAs now have a clear obligation to terminate SCCs where the safety of data cannot be guaranteed in a third country.

"The EDPB takes note of the duties for the competent supervisory authorities (SAs) to suspend or prohibit a transfer of data to a third country pursuant to SCCs, if, in the view of the competent SA and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country, and the protection of the data transferred cannot be ensured by other means, in particular where the controller or a processor has not already itself suspended or put an end to the transfer," Jelinek writes.

One thing is crystal clear: Any sense of legal certainty U.S. cloud services were deriving from the existence of the EU-U.S. Privacy Shield -- with its flawed claim of data protection adequacy -- has vanished like summer rain.

In its place, a sense of déjà vu and a lot more work for lawyers.