After the European Court of Justice (ECJ) declared the Privacy Shield agreement invalid, Facebook, like many other companies, relied on standard contract terms to continue sending data to the USA. The Irish Data Protection Authority (DPC) has now clarified that these do not apply. They sent a preliminary order to end the Facebook transfer. But according to data protection activist Max Shrems, the social network will soon try to apply a new legal basis.
The Standard Contractual Clauses (SCC) state that data can be transferred if the country to which it is sent has a standard comparable to the General Data Protection Regulation (GDPR). This is not happening in the USA. Since secret services such as the NSA can legally gain access to data, the privacy shield and other things cannot be considered comparable to data protection.
Facebook is arrogant and black-painted
This setting gives Facebook the opportunity to express itself. Only then can an order be issued from Ireland. Nick Clegg, Vice President, Global Affairs and Communications, quotes in his response Continue to rely on the possible effectiveness of the normal contract terms. He warns of possible repercussions if data is not allowed to be transferred to the USA: startups can no longer use US cloud providers, companies can no longer operate call centers in Morocco, and family members living in different countries can no longer use it to talk to each other via video conferencing.
“We will continue to transfer data in accordance with the latest ECJ ruling, until further instructions,” Clegg concluded.
Shrems criticizes Salami’s tactics
According to data protection activist Max Shrems, Facebook has taken a different path. Accordingly, the platform is now “based on the requirement for data transfer in accordance with Article 49 (1) (b) GDPR to transfer data to the USA”. This argument is not included in the provisional order of the Irish authorities, It says so in a post on the Noib website, An NGO founded by Shrems.
“Facebook seems to be right that the DPC is now focusing only on SCCs, so at the end of this process Facebook can get out of the next legal base cap. This legal salami strategy has been in place for seven years now,” Shrems said.
Noib plans to file an injunction against the Irish DPC. It is alleged that “the DPC is violating the court order suspending (again) the complaint procedure in order to initiate unnecessary second proceedings in the sub-case of the complaint”. The Authority must act on all legal grounds for data transmission.