In an opinion that has the potential to seriously disrupt how U.S. companies can share data from Europe, on September 23, Advocate General (AG) Yves Bot of the Court of Justice of the European Union (CJEU) declared that the existing framework governing that exchange of data fails to “ensure an adequate level of protection of the personal data which is transferred to the United States from the European Union.” This is because that framework, in AG Bot’s view, contains holes that can allow access to European’s personal data by the NSA and other U.S. security agencies. “[T]he law and practice of the United States allow the large-scale collection of the personal data of citizens of the [EU] which is transferred under the [framework] without those citizens benefiting from effective judicial protection.” And while the FTC and private dispute resolutions have the power to monitor possible breaches of the framework  by private companies, neither has the power to monitor possible breaches by U.S. security agencies.

The EU’s 1995 Data Protection Directive (“Directive”) requires that the transfer of personal data from an EU country to another country take place only if the other country ensures an adequate level of data protection. For the past 15 years, per a 2000 decision by the European Commission, U.S. companies participating in the U.S.-EU Safe Harbor Framework for personal data protection have been deemed to be compliant with that requirement. AG Bot’s opinion, however, calls that 2000 decision invalid. “To my mind, the existence of a [Commission] decision” on the sufficiency of a country’s personal data protection regime “cannot eliminate or even reduce” the powers of each EU member state’s Data Protection Authority, under Article 28 of the Directive, to independently assess the sufficiency of that country’s personal data protection regime. This opinion thus turns the power back over to individual EU countries to assess U.S. companies’ personal data protections, potentially leading to a fractured and technologically daunting state of digital commerce in Europe.

Negotiations are underway for a new U.S.-EU Safe Harbor Framework, but if AG Bot’s opinion is followed, no Framework would prevent country-by-country determinations of the sufficiency of a U.S. company’s personal data protections.