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Schrems II: A brief history, an analysis and the way forward – Shreya Tewari

On 16 July 2020, the European Court of Justice (ECJ) invalidated the EU-US Privacy Shield – a framework that regulated Trans-Atlantic data transfers. Further, even though the court upheld the validity of Standard Contractual Clauses (SCC) – an EU-approved template to safeguard EU citizens’ data-transfer, it put forth important qualifications for data controllers to adhere to when using such SCCs.

This post analyses the ECJ’s ruling, now known as Schrems II, in three parts. The first section sets the stage for the analysis by providing a brief history of EU-US data-flow arrangements and the developments leading up to Schrems II. The second section analyses the ECJ’s decision in Schrems II and finally, the third section concludes by exploring the implications of the ruling and evaluating the way forward.

Introduction and brief history

The European Union’s (EU) Charter of Fundamental Rights grants every EU citizen the right to have their data processed fairly, for specified purposes, and with user consent. The General Data Protection Regulation (GDPR) expounds on this right by providing adequate safeguards/checks and balances to protect personal data that belongs to EU citizens. It further clarifies that data-transfers to third countries are conditional upon an adequate level of data protection in those third countries.

Until 2015, Safe Harbour Agreement was an EU-US data flow arrangement between the US Department of Commerce and the European Union that regulated cross-Atlantic data transfer and was said to meet the abovementioned level of ‘adequate protection’. In 2013, Max Schrems, an Austrian privacy rights campaigner, challenged the validity of this agreement and specifically, the transfer of his personal data (and EU members’ personal data) by Facebook to servers based in the United States of America (US), before the Irish Data Protection Commission. Once his initial complaint was rejected, he moved the country’s High Court. The High court, in turn, referred the case to the European Court of Justice. After considering the safe harbour principles’ adequacy to protect EU citizen’s data, the ECJ found them to be invalid in 2015 (in a ruling famously known as Schrems I).

Within a few months of this, the European Commission and USA’s Department of Commerce, once again, came together to draft an alternative framework that provided an adequate level of data protection to trans-Atlantic data transfers. Resultantly, the safe harbour agreement was replaced by the EU-US Privacy Shield. The EU-US Privacy Shield was designed and adopted to ensure consistency with EU Laws when transferring data of EU citizens into the US. Alternatively, controllers could adhere to Standard Contractual Clauses that were pre-approved by the European Commission and would act as the terms and conditions for extraterritorial data-transfers. It is important to note here that SCCs had been recognised by the Commission in 2010 itself. The EU-US Privacy Shield, in particular, was heavily criticised by activists and data protection experts alike for not providing any concrete protection against indiscriminate access to personal data for national security purposes.

The Schrems II case:

In 2015, Schrems once again challenged Facebook’s use of SCCs to transfer EU citizens’ data to the USA on the ground that it did not adequately protect the rights of the EU-based data subjects. The Irish Data Protection Commission referred the case to the Irish High Court and the High Court, in turn, referred the case to the ECJ in 2018. When referring the case to the ECJ the High Court requested a decision on 11 questions. This article will focus on the three questions that broadly cover the thematic issues raised in the other questions too. First, the High Court requested adjudication on whether the SCCs and EU-US Privacy Shield were an adequate means of ensuring compliant data transfers to the US. Second, the High Court requested ascertainment of the factors that needed to be considered for determining whether data-transfers regulated by SCCs meet the required level of protection. and finally, the obligations of the Supervisory Authorities in such circumstances of data transfers pursuant to SCCs.

The EU-US Privacy Shield held to be invalid

At the outset, the ECJ notes that to find the EU-US Privacy Shield to be adequate, it had to be satisfied that the domestic law of the third country guaranteed a level of protection of fundamental rights was ‘essentially equivalent’ to that which was guaranteed under EU Law (Para 162). Consequently, the Court found it necessary to assess whether certain provisions of the US’s Foreign Intelligence Surveillance Act and the subsequent surveillance programmes that such provisions empower, ensures an adequate level of protection subject to, of course, the test of proportionality.

The ECJ found that the limitations on the protection of personal data that arose from US laws did not satisfy the ‘essential equivalence’ requirement. It found that the surveillance programmes based on such legal provisions are not proportional and ‘strictly necessary’ (Para 184). The Court noted that US’s primacy to national security, public interest and law enforcement allowed for interference with the fundamental rights of persons whose data is transferred to that third country. For instance, it observed that the US Government did not grant data subjects actionable rights before the Court against US authorities.  Further, it held that the mechanisms incorporated in the EU-US Privacy shield that was intended to mitigate these harm did not meet the required legal standard of ‘essential equivalence’ with EU Law. On these grounds, the ECJ found the EU-US Privacy Shield to be inadequate and invalid.

The Standard Contractual Clauses held to be valid – with qualifications to ensure adequate data protection

The ECJ held SCCs to be valid. However, it noted that in cases where SCCs were the basis of data transfer in a third county, the level of protection of an EU citizen’s data in that third country must be ‘essentially equivalent’ to the level of protection that has been guaranteed under the GDPR.

The ECJ went on to clarify that a third countries level of protection had to be assessed by taking into consideration the SCCs themselves and also the relevant legal system of the jurisdiction where the data would be transferred. The latter consideration intends to ensure that the standard of ‘essential equivalence’ is met. For determining essential equivalence, the appropriate safeguards, enforceable rights and effective legal remedies of the third country must be taken into consideration (Para 104 and 105).  The ruling on this matter was in line with the ECJ’s Advocate General’s opinion issued in December 2019.

The role of Supervisory Authorities in regulating data transfers through SCCs

The ECJ sheds light on the Data Protection Commissions’ investigatory role when determining the validity of data transfers to third countries. The Court clarified that to carry out its role of monitoring the application and enforcement of the GDPR, the Data Protection Commissions must take appropriate actions to remedy any inadequacies in the SCCs or its enforcement (Para 111).

Importantly, the Court clarified that unless the European Commission had made a prior adequacy decision, the Data Protection Commissions had the authority (and were required) to “suspend or prohibit the transfer of personal data to a third country” in cases where they were satisfied that the third country where the data was being transferred did not grant ‘essentially equivalent’ level of data protection when compared with EU Law (Para 113 and 121).

Implications and the way forward:

With this ruling, the ECJ has reiterated its strong commitment to upholding EU citizens’ fundamental right to have their data processed fairly, with consent and for specified purposes. Not only has the Court invalidated the EU-US Privacy Shield, but it has also required all member states’ Data Protection Authorities to suspend transfers of data through SCCs to third countries where the level of data protection maintained in the EU cannot be met.

The Court has categorically clarified that since the domestic laws and surveillance programmes in the US do not meet the test of proportionality, a strict necessity in the same way as the GDPR, its data protection framework is not ‘essentially equivalent’ to the EU’s.

In the aftermath of the Schrems II ruling, Věra Jourova, the Vice President of the European Commission for Value and Transparency has stated in an official press conference that the European Commission will work with their American counterparts to discuss a way forward.

However, a strict reading of the ECJ’s ruling calls for the US to review its surveillance laws before the EU can resume data-transfer with US-based organisations. In this regard, nyob, an organisation founded by Schrems, noted in its first statement after the ruling that the US would have to “engage in serious surveillance reform to get back to a ‘privileged’ status for US companies”. We live in a post-Snowden era and are cognisant that Facebook, Apple, Microsoft, and Google were some of the many companies feeding data to the National Security Agency for a mass surveillance programme and this exchange of data was permitted by provisions under FISA. Through this landmark judgment, the ECJ has not only made a stronger case for data protection, but it has also, in some ways, pushed for surveillance reform and adequate data protection framework for countries that hope to serve a customer base in the EU.  This judgement is a concrete step in the right direction for many reasons, including the fact that it pushes for surveillance reforms. It is also a cautionary tale for developing economies such as India, where the data protection framework is at the cusp of taking shape.

The ECJ also clarifies the role of Data Protection Commissions in determining the adequacy of SCCs. Even though the GDPR does not explicitly require them to do so, the ruling authorises the Data Protection Commissions to examine the adequacy standards of SCCs based on complaints received by individuals and to restrict or prohibit the transfer of data if the data protection standards are inadequate. This will ensure better enforceability of the judgment since the ECJ has decentralised the authority for making adequacy decision to the various Data Protection Commissions in the EU states. Even so, the European Commission will continue to have the final say its adequacy decisions will remain binding.

Lastly, the ruling has also led to various US-based organisations to immediately switch from the EU-US Privacy Shield framework to SCCs. Having said that, as mentioned earlier, the standard of due diligence that such organisations would have to engage in has increased considerably. As the ruling mentioned, not only should the organisation internally comply with the SCCs, it must also ensure that the jurisdiction in which the data is held is essentially equivalent to the standards of data protection in the EU. Hence, while the decision regarding the EU-US Privacy Shield is a clean-cut in that it provides absolute clarity, the decision regarding the SCCs is nebulous and is yet to be navigated. It is also a possibility that the organisations with servers in the USA would try to switch to data processing within Europe and silo data within the EU.

In any case, the Schrems II judgment is a landmark decision which sets a valuable precedent for extraterritorial data-transfers and raises some interesting questions that will have to be addressed in through partnerships between legislators, data protection experts, tech industrialists and activists alike.

Shreya Tewari is an Indian qualified lawyer and a legal researcher for Columbia Global Freedom of Expression. She has pursued her LLM in information Technology, Media and Communication Laws from the LSE.  In the past, she has collaborated with organisations such as Internet Freedom Foundation, India and Digital Freedom Fund, Berlin to research and advocate on issues of digital rights and free speech..

 

 

 

 

1 Comment

  1. Nick Richards

    Useful article but with many grammatical and some factual errors

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