Trust in Americans has been gone since Edward Snowden. The espionage by the NSA secret service, which the whistleblower uncovered in 2013, made it clear that EU citizens can be monitored by their “friends” in the USA – for example when they send messages on the US network Facebook.
The problem has been on the nerves of politicians and entrepreneurs for seven years. Because Europe’s highest judges have overturned both agreements between the EU and the USA, which were supposed to allow the flow of data across the Atlantic despite US snooping. Now US President Joe Biden and EU Commission President Ursula von der Leyen are making a third attempt. On Friday announced in Brussels that there should be an “improvement of the Privacy Shield framework”. The European Court of Justice (ECJ) declared the Privacy Shield deal between the EU and the USA invalid in 2020. Since then it has been – again – illegal in many cases to send certain data from the EU to the USA. In a networked world, however, this is practically impossible to avoid for many companies. Legal uncertainty arose for companies. The Facebook group Meta warned in autumn that without a new deal, Facebook and Instagram would probably have to be discontinued in Europe.
Biden and von der Leyen now want the dilemma to be resolved. The Commission President spoke of an “agreement in principle for a framework” that would again enable “trustworthy data flows” while “protecting privacy and civil rights”. It is not yet clear what the specific rules will be. The finalized text is still pending, details could take months. Biden said, “The EU Commission can now again allow transatlantic data flows” that enabled deals worth $7.1 billion – the total value of the annual deals between the two sides.
In addition to Edward Snowden, the second main character in the transatlantic data drama is Max Schrems. The Austrian data protection activist had invalidated the old agreements with two lawsuits before the ECJ. First in 2015 “Safe Harbor” – According to Schrems, Snowden’s revelations had shown that the USA, with its surveillance apparatus for data from EU citizens, could not be a “safe harbor”. After the judge’s verdict, the EU and USA tried to improve it in 2016 with the Privacy Shield – which the ECJ then overturned in 2020. As a result, national data protection authorities such as those of Austria, France and the Netherlands banned companies from transferring data to the USA.
The sticking point has always been how the US can guarantee that the secret service, with its far-reaching powers, cannot snoop around on EU citizens’ data as it pleases. The position of an ombudsman in the US Department of State as part of the Privacy Shield fell through with the judges: It is not apparent how this could tell the secret services what they should or should not do.
The situation because of the Ukraine war may have contributed to the agreement
Now, with the new agreement, the third – and if it is up to the EU and USA, the last – act of the drama is to come. After the announcement, however, Schrems already declared that he did not see any “substantial reform on the US side” and: “We already had a purely political agreement in 2015 that had no legal basis. As it currently looks, we could now play the same game a third time play.“He said to the SZ: “At the moment I’m 90 percent assuming that the thing will come out in the fall and then be before the ECJ within a few months.” He pointed out that the European Data Protection Board had to agree that the Commission could not decide completely freely on such a deal The Green member of the Bundestag and digital politician Konstantin von Notz “expressly” welcomed the fact that there was an agreement and said: “At the same time, more transparency is urgently needed with regard to the exact content and further action.”
The European employers’ association Business Europe, on the other hand, praised the agreement as a “great signal to the business community and the whole world”. The international association of data protectionists IAPP commented that “data protection professionals around the world can finally breathe a sigh of relief”.
There were great concerns in the EU, which is why the current agreement came as a surprise to some. The negotiations last took place against the background of the war in Ukraine – which may have played a role in the quick agreement. The Politico website reported on Thursday, some on the side of the USA and the US companies would have pushed even harder for an agreement and presented the free flow of data as a matter of national security, probably to clear concerns from the table. This negotiation tactic has not been confirmed. Schrems said: “It is particularly outrageous that the USA allegedly used the war against Ukraine to put pressure on the EU on this economic issue.”