Access Now to EU Commission: Strike down the toothless Privacy Shield

UPDATE: July 9, 2020 On July 16, the Court of Justice of the European Union will deliver its judgement on the “Schrems II” case. While the case deals with larger EU-US data transfer questions, it could lead to the invalidation of the Privacy Shield. Access Now has repeatedly called for the suspension of this deal as it fails to protect people’s rights to privacy and data protection.

“We must lay the EU-US Privacy Shield to rest once and for all,” said Estelle Masse, Global Data Protection Lead at Access Now. “We have seen debate around this ill-conceived and heavily-flawed arrangement year after year, and we hope the Court of Justice will come to the conclusion that the Privacy Shield does not work in conjunction with European and international human rights laws.”

September 18, 2019 — Access Now is calling upon the European Commission to strike down the EU-US “Privacy Shield” arrangement in light of the repeated failure by the US administration to take the necessary steps to protect European privacy rights.

The call comes in accordance with our extensive comments to the European Commission on the third annual review of the Privacy Shield, the arrangement that enables data transfer from the European Union to the United States. In our comments, we highlight developments that call into question the validity of the arrangement, including enhanced US surveillance that show disregard for human rights globally. These developments, coupled with the inherent flaws of the Privacy Shield that remain unaddressed, further strengthen the position that the arrangement undermines EU data protection principles and must be struck down.

“The Privacy Shield is an ill-suited framework which does not guarantee people’s rights to privacy and data protection and does not comply with EU law,” said Estelle Massé, Global Data Protection Lead at Access Now. “By maintaining the Privacy Shield, the EU Commission weakens Europe’s data protection framework and risks undermining its global leadership role in advancing human rights,” she added.

“If the United States government has failed to protect the privacy rights of the American people, how can the EU expect the US to protect the digital rights of Europeans?” said Jennifer Brody, Legislative Manager at Access Now. “The US administration has not followed through on the commitments it made under the Privacy Shield and continues to deploy surveillance technologies that target non-US persons. The arrangement must be struck down,” she added.

In our letter we highlight that nascent discussions regarding a federal data privacy law in the US should not yet reassure EU regulators and decision-makers that the US will live up to its responsibility to pass a comprehensive law. In fact, it is increasingly clear that the US Congress will most likely not pass a robust data protection law before the country’s 2020 presidential elections.

To summarise, in spite of some timid efforts by the US to finally honor some of its commitments under the Privacy Shield after over two and a half years of inaction, the laws and practices of the US continue to undermine the human rights of data subjects in the European Union. It is therefore high time for the EU Commission to strike down the arrangement.

Read the full submission here.

Access Now is an international NGO that works on human rights and tech policy around the world, including offices in Brussels and Washington, D.C.