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Understanding the Data Privacy Divide Between the European Union and the United States

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Understanding the Data Privacy Divide Between the European Union and the United States FACULTY OF LAW LUND UNIVERSITY MAXIMIN ORSERO UNDERSTANDING THE DATA PRIVACY DIVIDE BETWEEN THE EUROPEAN UNION AND THE UNITED STATES SUPERVISOR: XAVIER GROUSSOT JAEM03 MASTER THESIS 30 HIGHER EDUCATION CREDITS EUROPEAN BUSINESS LAW TERM: SPRING 2019 ABSTRACT This Thesis seeks to give its reader the tools to understand the data privacy divide between the EU and the US. It explains the crucial notions, historical and jurisprudential factors and regulatory frameworks underlying and constituting it. First, it answers why regulating data privacy is paramount to our democratic societies on both sides of the Atlantic. The growing importance of the data driven economy, whose raw material is our personal data, creates challenges to basic democratic values, for example privacy and the freedom of speech. This Thesis explores the darker side of the digital economy, sometimes referred to as a form of surveillance capitalism. It describes how the advertisement-based business model of some of the most successful internet companies may, if left unregulated, render citizens vulnerable to enhanced forms of influence and manipulation, and weaken essential counter-powers such as dissidents, whistle-blowers and the press. Second, it answers how the EU and US approaches to regulating data privacy differ. In essence, different historical roots and economic incentives on both sides of the Atlantic explain the difference. The EU has had a painful experience with government surveillance and invasions of privacy, in particular in the former German Democratic Republic. On the contrary, the US does not have such history and its economy has enormously benefited from lax data privacy regulations, allowing it to grow internet giants. As a result, the EU regulates privacy and data protection tightly and enshrines them as fundamental rights, while the US takes a more market- based and light-touch approach by treating data privacy essentially as a subset of consumer protection law. Third, it answers why the CJEU decided to invalidate the adequacy decision concerning the first attempt at bridging the divide, the Safe Harbor. In summary, this Thesis argues that the Court was trying to give leverage to the EU as the negotiation of the Safe Harbor 2.0 (now Privacy Shield) were nearing their end, in order for the US to make concessions and agree on a more protective framework than would have otherwise been possible. Fourth, it synthesizes the current avenues for transferring personal data from the EU to US, that is to say, primarily, the Privacy Shield, and other vehicles such as consent and contracts, the SCCs, the BCRs, codes of conducts and certifications. 2 ACKNOWLEDGEMENTS I would like to thank my supervisor Xavier Groussot for his support, not only in writing this final assignment but also for when he was coaching our team in the 2017-2018 EU law moot court competition, and throughout my time in Lund more generally. Je tiens aussi à remercier tout particulièrement Clément pour avoir partagé deux canards à Tolbiac la veille au soir de l’oral. C’était du meilleur effet. Maximin Orsero 3 ABBREVIATIONS BCR Binding Corporate Rules CCPA California Consumer Privacy Act CIA US Central Intelligence Agency CJEU / ECJ / The Court Court of Justice of the European Union Convention 108 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data Data Protection Directive Directive 95/46/EC DoC US Department of Commerce DoJ US Department of Justice DoT US Department of Transport DPA Data Protection Authority DPC Irish Data Protection Commissioner ECHR Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights EDPS European Data Protection Supervisor EDPB European Data Protection Board EEA European Economic Area EU European Union FBI US Federal Bureau of Investigation FISA US Foreign Intelligence Surveillance Act FTA US Federal Trade Commission GC General Court of European Union GDPR General Data Protection Regulation (Regulation 2016/679) 4 IAPP International Association of Privacy Professionals IRM Independant Recourse Mecanism MEP Member of the European Parliament NGO Non-Governmental Organisation NSA US National Security Agency NSLs National Security Letters ODNI US Office of the Director of National Intelligence PNR Passenger Name Record Pr. Professor SCC Standard Contractual Clauses TCE Transaction Costs Economics TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union The Charter / CFR The Charter of Fundamental Rights of the European Union UN United Nations US United States of America 5 TABLE OF CONTENTS Abstract 2 Acknowledgements 3 Abbreviations 4 Table of contents 6 Introduction 9 Background 9 Purpose and research questions 9 Delimitations, methodology and resources 9 Outline 11 1 Why data privacy matters on both sides of the Atlantic 12 1.1 Preliminary remarks on property and data 12 1.1.1 The nature of data 12 1.1.2 Comparison with real and personal property 13 1.1.3 Comparison with intellectual property and related rights 13 1.1.4 Risks associated with the creation of property rights for data 14 1.2 The reasons for regulating data privacy 15 1.2.1 Surveillance capitalism 15 1.2.1.1 The internet’s most popular business model 15 1.2.1.2 The cost of ‘free’ 16 1.2.2 Government surveillance and civil liberties 17 1.2.2.1 Chilling effect 17 1.2.2.2 Balance of powers 18 1.2.3 Security & Transparency v Privacy 19 1.2.3.1 ‘I’ve got nothing to hide’ 20 1.2.3.2 The right to be forgotten 21 1.3 First sub-conclusion 24 2 The different approaches to data privacy between the EU and the US 25 2.1 A European rights-talk approach and ‘omnibus’ laws 25 2.1.1 Privacy and data protection as fundamental rights 25 6 2.1.2 The differences between data protection and privacy in Europe 27 2.1.3 An ‘omnibus’ legal framework 28 2.2 An American marketplace approach and ‘patchwork’ laws 29 2.2.1 Personal data as a commodity for the privacy consumer 29 2.2.2 A ‘patchwork’ legal framework 29 2.3 Second sub-conclusion 31 3 The downfall of the Safe Harbor 32 3.1 Background 32 3.1.1 How the EU regulates international personal data transfers in general 32 3.1.2 Commission Decision 2000/520 ‘Safe Harbor’ 33 3.1.3 The Snowden revelations 34 3.2 The Schrems judgement 35 3.2.1 Facts of the case 35 3.2.2 The reference for a preliminary ruling 36 3.2.3 Reasoning of the Court 37 3.3 Receptions of the judgement 38 3.4 Ten myths about the Schrems case 40 3.4.1 The invalidation of Commission Decision 2000/520 was inevitable 41 3.4.2 The Safe Harbor was a treaty 41 3.4.3 The Safe Harbor was invalidated 41 3.4.4 The Safe Harbor was meant to address government surveillance issues 42 3.4.5 The Safe Harbor was poorly enforced by the FTC 42 3.4.6 The main victims were the US companies participating in the program 43 3.4.7 Data transfers to the US were rendered illegal 43 3.4.8 US law was not ‘adequate’ because not ‘equivalent’ to the EU legal order 43 3.4.9 EU data subjects had access to no means of redress nor remedies 44 3.4.10 The CJEU enhanced privacy protection for EU citizens 44 3.5 Third sub-conlusion 45 4 The current framework: the Privacy Shield and other compliance vehicles 46 4.1 Negotiations of Safe Harbor 2.0 and ‘re-branding’ to Privacy Shield 46 4.2 Content of the Privacy Shield package 46 4.3 Annual reviews of the Privacy Shield 47 4.3.1 Commercial considerations 48 4.3.2 Access by US authorities for national security and law enforcement 50 7 4.4 The uncertain future of the Privacy Shield 51 4.5 Alternatives to the Privacy Shield 54 4.5.1 Consent and contracts 54 4.5.2 Standard Contractual Clauses 55 4.5.3 Binding Corporate Rules 56 4.5.4 Codes of conducts and certifications 57 4.6 Fourth sub-conclusion 57 Summary and general conclusion 58 References 60 Academic sources 60 ECtHR case law and Council of Europe documentation 62 CJEU case law and opinions of Advocates General 62 US Supreme Court case law 63 Other US case law 63 EU statutes 63 US federal statutes 64 California statutes 64 References from official US institutions 65 References from official EU institutions 65 Sources from official EU Member States’ institutions 67 Professional publications by international law firms 67 Other professional legal publications 68 Press and media sources 69 Other resources 71 8 INTRODUCTION Background Data protection and privacy are fundamental rights in the EU. In the US, information privacy is a subset of consumer protection law and has no such quasi-constitutional value. The EU, by principle, considers transfers of personal data as illegal. The American regime is the exact opposite. The US’ technology companies are the most valuable in the world. The EU barely ever developed such a data-driven industry. Yet, the EU and the US are the two largest economies in the world, and data flows between them are paramount for the current digital economy. Starting from these two diametrically opposite positions, I was wondering how this Transatlantic data privacy divide is bridged. Purpose and research questions The purpose of this Thesis will be to give its reader an understanding of 1) what makes privacy so important in our modern economies and democracies on both sides of the Atlantic, 2) how the EU and the US approaches to regulating it differ, 3) why the first framework bridging the Transatlantic privacy divide, i.e.
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