Earlier this week, the European Court of Justice (CJEU) invalidated the Safe Harbor framework between the United States and the European Union -- effective immediately. This decision significantly disrupts the flow of data from Europe to the U.S. and will have a major impact on U.S.-EU trade.
What is the Safe Harbor
The CJEU Decision
In recent years, American data protection laws have come under increasing scrutiny in the EU, as individuals and regulatory agencies have challenged the right of companies such as Google and Facebook to collect and use personal data in connection with online searches and social media applications. The CJEU’s ruling resulted from an action brought by Max Schrems, an Austrian citizen and privacy activist, before the Irish Data Protection Commissioner to prohibit Facebook from transferring his personal data from the EU to the U.S. According to Schrems, the disclosure of government surveillance programs by Edward Snowden demonstrated that the Safe Harbor Framework was insufficient to protect his personal data from unauthorized or impermissible governmental surveillance and disclosure in the U.S.
The Commissioner refused to investigate the complaint, citing European Commission Decision 2000/520, which set out the Safe Harbor Privacy. Schrems challenged the Commissioner’s decision before Ireland’s High Court which determined, based on evidence including Snowden’s disclosures of widespread surveillance by the NSA and other federal agencies, that Schrems was, in effect, challenging the legality of Decision 2000/520. The High Court stayed the case in order to get a ruling from the CJEU as to whether the Commissioner could review Decision 2000/520, and the CJEU ruled that the Commissioner could do so, on the grounds that “the large scale access by intelligence agencies to data transferred to the U.S. by Safe Harbor certified companies raises…serious questions regarding the continuity of the data protection rights of Europeans when their data is transferred to the U.S.” and that “a significant number of certified companies did not comply or did not comply fully with the safe harbor principles.”
The CJEU’s decision unwinds a legal framework on which thousands of companies across a range of industries, including technology, finance, and healthcare, have relied for the past 15 plus years. While suggesting that bilateral agreements between individual EU member states and the U.S. should be overseen by each country’s privacy regulators, the decision nonetheless, leaves a legal vacuum and means that companies can no longer rely on certification within a single data privacy regime. The decision potentially impacts any company that transmits personal data between the EU and the U.S., including human resources information concerning the company’s own employees.
What this means for Companies
For the past two years, the EU and the U.S. have been negotiating a new safe harbor framework. While this ruling will certainly add urgency to that process, it may also add a layer of complexity as negotiators must now be mindful of what is and is not permissible under the CJEU decision. Significantly, while the judgment is limited to the Safe Harbor mechanism and does not invalidate other existing means to transfer data from the EU to the U.S., such as U.S. “Model Clauses” which have been approved by the European Commission for data transfer contracts with an EU-located subsidiary, and binding corporate rules (“BCRs”) that can be applied throughout an entire corporate group regardless of location, the CJEU’s first rationale for striking down the Safe Harbor Framework – the large scale access to private data enjoyed by U.S. intelligence agencies – seems at least potentially applicable to Model Clauses and BCRs as well, and companies relying on these mechanisms should expect future legal challenges. In any event, the approval process for Model Clauses and BCRs can be both lengthy and expensive, making them potentially unsuitable for all but the largest companies.
Because the CJEU has not provided a transitory period, companies concerned about their compliance with EU privacy laws applicable to any personal information they may collect, store, or transmit should immediately begin reviewing the sources and types of such information, and determine the extent to which personal information of their employees or customers may be implicated. Companies should also review this information with any third party vendors they engage that may be involved in the process of data collection, storage, analysis or transmission, review those vendors’ privacy policies, and stay informed of any updates these vendors may be contemplating.
Alternative methods of addressing data transfers will be needed. Consideration should be given to obtaining individual consent, or implementing strong encryption, establishing European servers in order to locally store any personal data of EU residents, or ensuring that all personal data from EU residents is segregated from other information and not transmitted to the U.S. In the interim, companies and their counsel should be closely monitoring the ongoing negotiations for a new safe harbor framework so that adjustments can be made accordingly.