The United States and the European Union have signed this Friday a new agreement to transfer personal data between the two blocks, US President Joe Biden and the President of the European Commission, Ursula Von der Leyen, announced at a joint conference. The previous protocol was annulled in 2020 by the EU High Court of Justice, which pointed out that the privacy laws of both blocs were not assimilable and the sending of personal data from Europeans to the US did not respect their rights.
What would happen if Facebook and Instagram left the EU?
Despite the fact that the legal framework for these shipments was invalidated, several American digital multinationals continued to send personal data. They relied on contractual clauses that in their opinion allowed the transfer, but the legal uncertainty of this mechanism led Meta (parent company of Facebook, Instagram and WhatsApp) to affirm in its annual communication with the US stock market regulator that it could withdraw its EU social networks if no new data transfer agreement was reached. The company later claimed that the letter was “not at all a threat to leave Europe.”
“We are not alone. At least 70 other companies from a wide range of sectors, including ten European companies, have also raised the risks around data transfers in their results statements”, explained Meta, who called on regulators to immediately agree on a new framework for those transfers: “Companies need clear, global rules to protect transatlantic data flows in the long term.”
The previous protocol, called Privacy Shield (Privacy Shield) fell following a complaint by privacy activist Max Schrems against Facebook. This 34-year-old Austrian alleged that US law allows its security agencies to investigate the personal data of Europeans without the control of any judicial authority in the EU, which violated his rights. The Court agreed with him… for the second time: Schrems was also responsible for overturning a first agreement between Brussels and Washington in 2015, based on the same argument and also through a claim against Facebook.
No changes announced
Details of the new data transfer agreement have not been disclosed. “There is only a political ad, not a text that can be analyzed,” they explain from Noyb, a privacy NGO chaired by Schrems. Neither Biden nor Von der Leyen have explained in their appearance if the US will change its laws regarding the capabilities of its security agencies to investigate European data, or if they will shield that point of the agreement with another before a new claim before the CJEU.
“Today we have reached an unprecedented agreement on the protection of data privacy and the security of our citizens,” said the US president, according to EFE. “The pact will allow the flow of data between the EU and the US in a predictable, reliable way, balancing security, privacy rights and data protection,” Von der Leyen assured.
Schrems declares that he will take the agreement back to court if it has the same holes as the previous two. “The final text will need more time, once it arrives we will analyze it in depth, together with our American legal experts. If it doesn’t conform to EU law, it’s likely to be challenged by us or another group. In the end, the Court of Justice will decide for the third time ”, he has advanced in a statement.