Facebook row: US data storage leaves users open to surveillance, court rules

US data storage systems operated by Facebook and other digital operators do not provide customers with protection from state surveillance, the European court of justice has ruled.

The declaration by the EU court in Luxembourg that privacy is being compromised will have far-reaching consequences for the online industry and could force many companies to relocate their operations.            

Declaring the American so-called safe harbour scheme “invalid”, the ECJ, whose findings are binding on all EU members states, ruled that: “The United States … scheme thus enables interference, by United States public authorities, with the fundamental rights of persons…”                

Safe harbour is an agreement between the European commission and the US that provides guidance for US firms on how to protect for the personal data of EU citizens as required by the European Union’s directive on data protection. There are negotiations going on to upgrade the framework and provide better privacy for online users.            

The ruling, confirming an earlier opinion by the court’s advocate-general last month, is a victory for the Austrian campaigner Maximilian Schrems, who initially brought a claim against Facebook in Ireland in the wake of Edward Snowden’s revelations about the activities of the US National Security Agency (NSA).            

The ECJ ruling said: “The safe harbour decision denies the national supervisory authorities their powers where a person calls into question whether the decision is compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals.           

“… This judgment has the consequence that the Irish supervisory authority is required to examine Mr Schrems’ complaint with all due diligence and, at the conclusion of its investigation, is to decide whether, pursuant to the directive, transfer of the data of Facebook’s European subscribers to the United States should be suspended on the ground that that country does not afford an adequate level of protection of personal data.”          

Responding to the judgment, the Liberal Democrat MEP Catherine Bearder commented: “This is a historic victory against indiscriminate snooping by intelligence agencies, both at home and abroad. In a globalised world, only a strong and binding international framework will ensure our citizens’ personal data is secure.”          

Monika Kushewsky, a data privacy lawyer team with the firm Covington, said: “This judgment is a bombshell. The EU’s highest court has pulled the rug under the feet of thousands of companies that have been relying on safe harbour. All these companies are now forced to find an alternative mechanism for their data transfers to the US. And, this, basically overnight, as the court has declared the commission decision on safe harbour invalid without providing for any transitional period.”          

Mike Weston, chief executive of the data science consultancy Profusion, said: “American companies are going to have to restructure how they manage, store and use data in Europe and this take a lot of time and money. The biggest casualties will not be companies like Google and Facebook because they already have significant data centre infrastructure in countries like the Republic of Ireland, it will be medium-sized, data-heavy tech companies that don’t have the resources to react to this decision.”           Mark Thompson, privacy practice leader at KPMG, said: “Europe [is] taking a strong stance in ensuring that European citizens are provided the same level of protection no matter where the processing of their personal information takes place.      

“At the foundation of this is the need for global organisations to take privacy seriously, creating an environment which respects the rights of the individuals whose personal information they process regardless of the mechanism used to legitimise the transfer.”   

The home affairs spokesman for the Greens in the European parliament, Jan Philipp Albrecht, said: “Safe harbour enabled masses of Europeans’ personal data to be transferred by companies like Facebook to the United States over the past 15 years. With today’s verdict it is clear that these transfers were in breach of the fundamental right to data protection. It is now up to the commission and the Irish data protection commissioner to immediately move to prevent any further data transfers to the US in the framework of safe harbour.          

“It is now high time to pass a strong and enforceable framework for the protection of personal data in the course of the EU data protection reform and make clear to the United States that it has to deliver adequate legally binding protection in the private sector as well as to introduce juridical redress for EU citizens with regards to their privacy rights in all sectors including national security.”

Owen Bowcott
Owen Bowcott works from London. Owen is a correspondent for the Guardian based in London. He is formerly the Guardian's Ireland correspondent and also worked on the foreign newsdesk. Owen Bowcott has over 4364 followers on Twitter.

R1.1-billion land claim “captured”

This story was produced in partnership with Pulitzer Center. Details of the land claim settlement for MalaMala, one...

Lekwa municipality won’t answer questions about why children died in...

Three children are dead. More than a dozen homes have been gutted by fires in the past six months. And, as...

Failure to investigate TRC cases during the Mandela era delayed...

Counsel for late trade unionist Neil Aggett’s family decries the slow pace of instituting an inquest into his death

SANDF colonel accused of swindling colleagues in UN business scam

A senior soldier who is part of South Africa’s peacekeeping missions is accused by her colleagues of swindling them out of of hundreds of thousands of rands in a nonexistent business deal

Press Releases

South Africans unsure of what to expect in 2020

Almost half (49%) of South Africans, 15 years and older, agree or strongly agree that they view 2020 with optimism.

KZN teacher educators jet off to Columbia University

A group of academics were selected as participants of the programme focused on PhD completion, mobility, supervision capacity development and the generation of high-impact research.

New-style star accretion bursts dazzle astronomers

Associate Professor James O Chibueze and Dr SP van den Heever are part of an international team of astronomers studying the G358-MM1 high-mass protostar.

2020 risk outlook: Use GRC to build resilience

GRC activities can be used profitably to develop an integrated risk picture and response, says ContinuitySA.

MTN voted best mobile network

An independent report found MTN to be the best mobile network in SA in the fourth quarter of 2019.

Is your tertiary institution is accredited?

Rosebank College is an educational brand of The Independent Institute of Education, which is registered with the Department of Higher Education and Training.

Is your tertiary institution accredited?

Rosebank College is an educational brand of The Independent Institute of Education, which is registered with the Department of Higher Education and Training.

VUT chancellor, Dr Xolani Mkhwanazi, dies

The university conferred the degree of Doctor of Science Honoris Causa on Dr Xolani Mkhwanazi for his outstanding leadership contributions to maths and science education development.