Four public interest groups as well as a number of Dutch individual users of Facebook, WhatsApp and Instagram, have sent a letter to Mark Zuckerberg following the landmark Schrems judgment of the European Court of Justice.
The European Court of Justice on October 6, 2015, invalidated the Safe Harbor Agreement, which was the basis for Facebook’s transfer of personal data from the European Union to the United States. The Grand Chamber of the European Court of Justice found that the legislation of the United States fails to ensure a level of protection essentially equivalent to that guaranteed in the legal order of the European Union.
The US National Security Agency has access to Facebook content of users from the European Union, without any judicial redress being available to them. The European Court of Justice held that this compromises the essence of the fundamental right to privacy. These issues have not been resolved yet.
To date, Facebook has been remarkably absent from in the public debate that followed this landmark judgment. Ton Siedsma of Bits of Freedom says:
"We invite Facebook to publicly engage in a meaningful and transparent dialogue aimed at finding a solution, and to pressure the authorities to find such solution. Facebook is invited to publicly share its current and intended policies and practice on data transfer."
Following the judgment, Facebook continued the transfer of personal data from the European Union to the United States. Bas Filippini of Privacy First says:
"Absent an adequate level of protection in the United States, the continued transfer of personal data is clearly incompatible with European data protection laws. Such transfer violates the rights of millions of individuals. If this is not resolved shortly, we will initiate legal action."
Find a solution
On December 15, Facebook was summoned by the Dutch lawfirm Boekx Advocaten to come up with an adequate solution by 15 January 15, 2016. If it fails to do so, civil rights groups and a number of Dutch individuals will request the Court in The Hague to grant an injunction ordering Facebook to immediately cease the transfer of personal data to the United States. This pertains to all services of Facebook, including WhatsApp and Instagram.
"As long as the United States fail to provide an adequate level of protection against mass surveillance, personal data may not be transferred to the United States. Taking Facebook to court emphasizes the urgency of resolving this issue." says Jelle Klaas of the Public Interest Litigation Project of NJCM, the Dutch section of the International Commission of Jurists. "Our goal is not to put the screens of millions of users to black, but to enhance the current level of privacy protection. Hopefully, a solution can be found shortly by the legislators."
The signatories of the letter include the Privacy First Foundation, Bits of Freedom, the Public Interest Litigation Project PILP and the Dutch Platform for the Protection of Civil Rights, as well as a number of Dutch individual users of Facebook, WhatsApp and Instagram (such as Mrs. Quirine Eijkman and Mr. Menso Heus, both from Amsterdam). Read the letter of here.
Facebook came the same day with a swift response on the letter demanding them to stop EU-US data transfers until United States laws comply with the European Union data protection regime. Matt Steinfeld, Facebook spokesperson, gave a written statement to Forbes:
"Facebook uses the same mechanisms that thousands of others companies across the EU use to transfer data legally from the EU to the US, and to other countries around the world. We believe that the best solution to the on-going debate around transatlantic data transfers is for there to be a new Safe Harbor agreement with appropriate safeguards for EU citizens."
"We understand that authorities in the EU and US are working hard to put such an agreement in place as soon as possible. We trust that these groups are engaging with their respective governments on this process to help it reach a successful conclusion."
Otto Volgenant of the Boekx stated to Liberties.eu:
"This initial statement of Facebook is just a copy paste of its earlier statements on this issue. We invited Facebook to participate in the public debate in a meaningful way. Privacy protection is an important issue for all Facebook users."