The European Court of Justice has finally issued its decision in Facebook Ireland Ltd. v. Maximillian Schrems — otherwise known as Schrems II.
The full text of the Schrems II opinion is here.
The result: The US-EU Privacy Shield Framework is invalid. The Standard Contractual Clauses are valid. Ultimately, this means that it is still possible to transfer personal data from the EU to the US, but the US no longer enjoys the special arrangement it had with Privacy Shield. The US is now just like any other country.
Before folks cheer about the survival of the Standard Contractual Clauses (SCC), it should be noted that the ECJ didn’t say that data transfers pursuant to the SCC are automatically valid. Instead, the data controller or processor must “verify, on a case-by-case basis . . . whether the law of the third country of destination ensures adequate protection, under EU law, of personal data transferred pursuant to standard data protection clauses, by providing, where necessary, additional safeguards to those offered by those clauses.” The problem is that it is difficult to imagine how one can verify that the United States (or many other countries with extensive government surveillance) are ensuring adequate protection. According to the U.S. Supreme Court, contracts can’t give rise to a reasonable expectation of privacy to override the Third Party doctrine. Controllers or processors can’t fix the lack of standing in Clapper v. Amnesty International.
Some key quotes from the opinion:
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