Businesses are grappling with uncertainty related to decisions from European regulators and courts that make it difficult to move personal data to the US.
Negotiations on a successor to the Privacy Shield agreement, the trans-Atlantic data-transfer deal, have dragged on since July 2020, leaving companies that operate in Europe with limited options. In 2021, European Union regulators and courts added another layer of confusion by stopping companies from using U.S. tech providers, saying they introduced privacy risks to data from residents of the 27 countries in the bloc.
“This is worrying and getting tough,” said Martynas Barysas, director for internal market at Business Europe, a trade group in Brussels. “We’re entering 2022 without clarity on international data flows.”
The Irish data protection commissioner is expected to announce a decision in 2022 that could force Facebook Inc., now called Meta Platforms Inc., to stop sending data from Europe to the U.S. The regulator sent Facebook a preliminary order to stop data transfers in 2020, but the case was stalled for months while the company filed a procedural complaint in Ireland’s High Court. The court rejected the company’s complaints in May 2021.
Especially if the Irish decision comes before there is a new arrangement to replace Privacy Shield, a potential order to stop moving data to the U.S. could have broad repercussions for Meta and other companies, said Caitlin Fennessy, chief knowledge officer at the International Association of Privacy Professionals, a trade group. “The challenges are increasing, not decreasing,” she said.
EU and U.S. officials have been discussing terms for a new data arrangement that could satisfy demands from the EU’s top court. The court ruled in 2020 that Privacy Shield was illegal because American government surveillance was a threat to Europeans’ privacy, and people had no form of legal redress to challenge it in the U.S. The EU’s justice commissioner said in March that it could take years to find a solution, and additional U.S. privacy legislation could help. A spokesman for the European Commission, the EU’s executive arm that is taking part in the negotiations with the U.S., said talks have intensified in the past months.
“These negotiations take some time, given also the complexity of the issues discussed and the need to strike a balance between privacy and national security,” he said.
In recent months, cases have stacked up in which European regulators required companies and government offices to cut ties with American technology providers. Portugal’s statistical institute, for example, stopped using cloud-security companyCloudflare Inc. after the country’s regulator said it was possible that Cloudflare could move data to the U.S., where it is based. Cloudflare said it didn’t transfer any of the institute’s data to the U.S. In December, a German court ordered a university to stop using Cookiebot, a consent-management platform for websites that shared data with a U.S.-based cloud host. Even if the data were kept in the EU, the court ruled, an American company could be required to give data to law enforcement authorities under the U.S. Cloud Act, a 2018 law that requires U.S.-based companies to comply with such demands.
“Even if we have a successor to Privacy Shield early next year, probably a lot of these difficulties will not be resolved,” said Théodore Christakis, a professor of law at the Université Grenoble Alpes in France and European director of research at the Cross-Border Data Forum, a nonprofit.
U.S. cloud providers including Amazon.com Inc.’s Amazon Web Services and Microsoft Corp. have said they store Europeans’ data in the EU upon request, offer encryption and challenge requests to provide data to law enforcement authorities.
Regulators’ and courts’ scrutiny of data policies have made it more challenging for European companies to use American tech providers, Ms. Fennessy said. “It’s no longer clear who you can partner with,” she said.
