EU Court Again Rules That NSA Spying Makes U.S. Companies Inadequate for Privacy

Electronic Frontier Foundation

The European Union’s highest court today made clear—once again—that the US government’s mass surveillance programs are incompatible with the privacy rights of EU citizens. The judgment was made in the latest case involving Austrian privacy advocate and EFF Pioneer Award winner Max Schrems. It invalidated the “Privacy Shield,” the data protection deal that secured the transatlantic data flow, and narrowed the ability of companies to transfer data using individual agreements (Standard Contractual Clauses, or SCCs).

Despite the many “we are disappointed” statements by the EU Commission, U.S. government officials, and businesses, it should come as no surprise, since it follows the reasoning the court made in Schrems’ previous case, in 2015.

Back then, the EU Court of Justice (CJEU) noted that European citizens had no real recourse in US law if their data was swept up in the U.S. governments’ surveillance schemes. Such a violation of their basic privacy rights meant that U.S. companies could not provide an “adequate level of [data] protection,” as required by EU law and promised by the EU/U.S. “Privacy Safe Harbor” self-regulation regime. Accordingly, the Safe Harbor was deemed inadequate, and data transfers by companies between the EU and the U.S. were forbidden.

Since that original decision, multinational companies, the U.S. government, and the European Commission sought to paper over the giant gaps between U.S. spying practices and the EU’s fundamental values. The U.S. government made clear that it did not intend to change its surveillance practices, nor push for legislative fixes in Congress. All parties instead agreed to merely fiddle around the edges of transatlantic data practices, reinventing the previous Safe Harbor agreement, which weakly governed corporate handling of EU citizen’s personal data, under a new name: the EU-U.S. Privacy Shield.

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