Cayman Islands, Caribbeanand International News
Wednesday, Feb 01, 2023

Despite EU court rulings, Facebook says US is safe to receive Europeans’ data

Despite EU court rulings, Facebook says US is safe to receive Europeans’ data

Internal documents say EU judges’ ruling ‘should not be relied on’ in data transfer assessments.
Europe's top court says Washington plays fast and loose with European data. Facebook disagrees.

Despite the European Union's highest court twice declaring that the United States does not offer sufficient protection for Europeans' data from American national security agencies, the social media giant's lawyers continue to disagree, according to internal documents seen by POLITICO.

Their conclusion that the U.S. is safe for EU data is part of Facebook's legal argument for it to be able to continue shipping data across the Atlantic.

"The conclusion of the Equivalence Assessment is, in summary, that relevant U.S. law and practice provides protection of personal data that is essentially equivalent to the level of protection required by EU law," says one of the Facebook internal documents, dated 2021. Equivalence Assessments are made by companies to judge how privacy protections in non-EU countries compare to Europe's.

In July 2020, the Court of Justice of the European Union (CJEU) struck down a U.S.-EU data transfer instrument called Privacy Shield. The court concluded Washington did not offer adequate protection for EU data shipped overseas because U.S. surveillance law was too intrusive for European standards.

In the same landmark ruling, the Luxembourg-based court upheld the legality of another instrument used to export data out of Europe called Standard Contractual Clauses (SCCs). But it cast doubt on whether these complex legal instruments could be used to shuttle data to countries where EU standards cannot be met, including the U.S.

The CJEU reached a similar conclusion in 2015, striking down the predecessor agreement to Privacy Shield because of U.S. surveillance law and practices. In both rulings, Europe's top judges categorically stated Washington did not have sufficiently high privacy standards.

Still, Facebook — the company at the heart of both cases — thinks it shouldn't follow the court's reasoning.

The company's lawyers argue in the documents that the EU court ruling "should not be relied on" for the social media company's own assessment of data transfers to the U.S., because the judges' findings relate to Privacy Shield data pact, and not the Standard Contractual Clauses which Facebook uses to transfer data to the U.S.

"The assessment of U.S. law (and practice) under Article 45 GDPR is materially different to the assessment of law and practice required under Article 46 GDPR," the document reads. That refers to the two different types of legal data transfer instruments under the EU's General Data Protection Regulation and indicates that assessment under SCCs is different to assessment under Privacy Shield.

The company also says that changes to U.S. law and practices since the July 2020 ruling should be taken into account. As an example, it cites the U.S. Federal Trade Commission, a watchdog, "carrying out its role as a data protection agency with unprecedented force and vigour." Those arguments have been central to Washington's pitch during ongoing transatlantic negotiations over a new EU-U.S. data agreement.

Though companies have to take the EU court ruling into account when making their own assessments of third party country regimes, they can, in theory, diverge from the court's findings if they believe it is justified in a particular situation. This means that companies like Facebook can, in theory, continue to ship data out of Europe if they can prove its sufficiently protected.

"A transfer impact assessment conducted under EU law should take [the court's findings] into account for transfers to the U.S., but it is still an assessment that each company makes for their specific transfers under SCCs, which they are responsible for if the legality of that transfer is or will be challenged," said Gabriela Zanfir-Fortuna of the Future of Privacy Forum think tank.

Even so, several legal experts contacted by POLITICO said they could not see how Facebook would be able to conclude the U.S. protections are essentially equivalent to the EU's in light of the court ruling. One said that this was especially true for Facebook, since the company's own data transfers were at the heart of the case.

The revelations heap fresh pressure on the Irish Data Protection Commission (DPC), which first received a complaint against Facebook's data transfers in 2013 from Austrian campaigner Max Schrems. That complaint led to the CJEU's so-called Schrems I and Schrems II rulings that concluded that U.S. protections fall short of EU standards.

In a preliminary decision in September 2020, the Irish DPC suggested Facebook would have to stop transferring data to the U.S. following last July's ruling, but has yet to finalize the decision despite overturning Facebook's challenge to the agency's investigation in May. Dublin now holds the power to stop Facebook from moving EU data to the U.S.

If the Irish watchdog follows through with that decision, it would mark a serious blow to Facebook's efforts to keep the data taps flowing amid the ongoing EU-U.S. discussions on a new data-transfer pact.

The Irish DPC said it could not comment since it has an open inquiry into the matter.

A Facebook spokesperson said: “Like other companies, we have followed the rules and relied on international transfer mechanisms to transfer data in a safe and secure way. Businesses need clear, global rules, underpinned by the strong rule of law, to protect transatlantic data flows over the long term.”

The company's internal document also points to the EU's data flows deal with the United Kingdom, which Brussels approved in June, to back up its favorable assessment of the U.S.

"It is clear that in some important respects, the U.K. regime, which the Commission has assessed to be adequate under Article 45 GDPR, takes a similar approach to the U.S. in relation to limitations on data protection rights in the context of interception of communications," the document reads.

In a separate document listing factors relevant to its data transfers, Facebook seeks to downplay the risk that data is accessed by U.S. authorities.

It notes the 234,998 data requests it received from U.S. authorities in 2020 "represents a tiny fraction" of the total number of users, which Facebook estimates at around 3.30 billion.

Related Articles

WARNING GRAPHIC CONTENT - US Memphis Police murdering innocent Tyre Nichols
Almost 30% of professionals say they've tried ChatGPT at work
Interpol seeks woman who ran elaborate exam cheating scam in Singapore
What is ChatGPT?
Bill Gates is ‘very optimistic’ about the future: ‘Better to be born 20 years from now...than any time in the past’
Tesla reported record profits and record revenues for 2022
Prince Andrew and Virginia Giuffre Photo Is Fake: Ghislaine Maxwell
Opinion | Israel’s Supreme Court Claims a Veto on Democracy
Moonwalker Buzz Aldrin Gets Married On His 93rd Birthday
Who’s Threatening Israeli Democracy?
Federal Reserve Probes Goldman’s Consumer Business
China's first population drop in six decades
Microsoft is finalising plans to become the latest technology giant to reduce its workforce during a global economic slowdown
China's foreign ministry branch in Hong Kong urges British gov't to stop the biased and double standards Hong Kong report
Tesla slashes prices globally by as much as 20 percent
1.4 Million Copies Of Prince Harry's Memoir 'Spare' Sold On 1st Day In UK
After Failing To Pay Office Rent, Twitter May Sell User Names
Lisa Marie Presley, singer and daughter of Elvis, dies aged 54
FIFA president questioned by prosecutors
Britain's Sunak breaks silence and admits using private healthcare
Hype and backlash as Harry's memoir goes on sale. Unnamed royal source says prince 'kidnapped by cult of psychotherapy and Meghan'
Saudi Arabia set to overtake India as fastest-growing major economy this year 
Google and Facebook’s dominance in digital ads challenged by rapid ascent of Amazon and TikTok
FTX fraud investigators are digging deeper into Sam Bankman-Fried's inner circle – and reportedly have ex-engineer Nishad Singh in their sights
TikTok CEO Plans to Meet European Union Regulators
UK chaos: Hong Kong emigrants duped by false prospectus
France has banned the online sale of paracetamol until February, citing ongoing supply issues
Japan reportedly to give families 1 million yen per child to move out of Tokyo
Will Canada ever become a real democracy?
Hong Kong property brokerages slash payrolls in choppy market
U.S. Moves to Seize Robinhood Shares, Silvergate Accounts Tied to FTX
Effect of EU sanctions on Moscow is ‘less than zero’ – Belgian MEP
Coinbase to Pay $100 Million in Settlement With New York Regulator
FTX assets worth $3.5bn held by Bahamas securities regulator
A Republican congressman-elect is under investigation in New York after he admitted he lied about his education and work experience.
Brazilian football legend Pele, arguably the greatest player ever, has died at the age of 82.
Hong Kong to scrap almost all its Covid rules
EU calls screening of travellers from China unjustified
US imposes Covid testing for visitors from China
Ukraine President Volodymyr Zelenskyy Addresses Joint Session of Congress - FULL SPEECH
If a country is denied the right to independence by another, it is not in a union. It is in a dictatorship.
Where is Rishi? Chancellor Jeremy Hunt's excuses about the UK's economic challenges just don't make sense
Former FTX CEO Bankman-Fried finally arrested in Bahamas after U.S. files charges
Corruption works: House Financial Services Chair Waters doesn't plan to subpoena her donor, Sam Bankman-Fried, to testify at hearing on FTX collapse
Ronaldo's new contract...
Prince William's godmother resigns honorary royal role after exposing her/their racism
British PM Rishi Sunak pledges further action on strikes to 'protect lives'
Tax fraud verdict again exposes illusion of Trump the master businessman
Tax fraud verdict again exposes illusion of Trump the master businessman.
Double standards: UK lawmakers attack EU chief over Ireland claims