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NOYB's representation of the US data agreement. Twitter

EU signs agreement to sell citizen’s data to the US

EU Commission President Ursula von der Leyen and President Biden have announced an "agreement in principle" on a new EU-US data exchange. In essence it means that the EU is willing to sell the data of its citizens to the Biden administration. EU citizens have not been consulted on this matter.

Published: March 30, 2022, 11:10 am

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    Austrian lawyer Max Schrems, who had obtained the annulment of the similar Orwellian Safe Harbor agreement in 2015 followed by that of the Privacy Shield in 2020, announced that he would take the matter to the EU Court once again.

    Previous attempts had been invalidated by the Court of Justice of the European Union (CJEU) because it failed to protect European Internet users from the violation of their privacy by American multinationals.

    Schrems and his data protection association NOYB said: “We already had a purely political deal in 2015 that had no legal basis. From what you hear we could play the same game a third time now. The deal was apparently a symbol that Von der Leyen wanted, but does not have support among experts in Brussels, as the US did not budge. It is especially appalling that the US has allegedly used the war on Ukraine to push the EU on this economic matter.

    “The final text will need more time, once this arrives we will analyze it in depth, together with our US legal experts. If it is not in line with EU law, we or another group will likely challenge it. In the end, the Court of Justice will decide a third time. We expect this to be back at the Court within months from a final decision.”

    For the time being, the latest announcement is one of political intent only, and no text has been provided that can be analyzed. As far as NOYB [an abbreviation for ‘none of your business’] is informed, such a text does not exist yet and will take a couple of months to be drafted.

    This is probably what was meant by an “agreement in principle”: Lawyers still have to find ways around the obstacles raised by the Court of Justice (CJEU). So far no solutions were delivered despite two years of discussions.

    According to NOYB, the US is not planning to change any surveillance laws, but rather concentrate on executive reassurances (using EU language like “proportionality”). It is unclear how this would remotely pass the test by the CJEU, as US surveillance was already held not to be “proportionate” by the CJEU. Previous agreements failed twice in this respect.

    There seems to be no update to the Privacy Shield used for commercial data usage, despite the coming into force of the EU’s General Data Protection Regulation (GDPR).

    Any new deal would not be a bilateral agreement, but an executive decision by the European Commission that would have to be reviewed by the European Data Protection Board (EDPB) first. This process can only be initiated once there is a legal text. An actual “adequacy decision” would therefore need at least some months.

    Companies can therefore not use the deal until it is formally passed, while any decision will be challenged in the European Court of Justice. NOYB said it expected to be able to get any new agreement that did not meet the requirements of EU law back to the CJEU quite soon via for example civil litigation and preliminary injunctions. The CJEU may even take preliminary action, if a deal clearly violated previous judgements.

    Overall a political announcement without an accompanying text, has generated even more legal uncertainty for the time being.

    “It is regrettable that the EU and US have not used this situation to come to a ‘no spying’ agreement, with baseline guarantees among like-minded democracies. Customers and businesses face more years of legal uncertainty,” said Schrems.

    European Council President Charles Michel, who hosted US President Joe Biden in the context of the Ukrainian crisis, confirmed that an agreement had been reached on the transfer of personal data belonging to European Internet users to the US.

    The US-EU Trade and Technology Council meeting which is scheduled for May, will be used as the “united” battering ram against Russia in the data economy.

    The United States appears not to be backing down in any way, while the European Union has simply lowered its requirements to announce a “new” deal.

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