US/EU “Safe Harbor” Agreement Ruled Invalid By EU Judge

William Kellermann
September 23, 2015

In an influential opinion published September 23, 2015, European Court of Justice (ECJ) Advocate General Yves Bot recommended the ECJ find the US/EU “Safe Harbor” Agreement invalid.   The 40-page ruling provides a preliminary victory for Austrian law student and privacy advocate Maximillian Schrems, but stands to cast the data transfer practices of many companies into turmoil.

The case stems from Shrems’ crusade against the data privacy and data transfer practices of Facebook in light of Edward Snowden’s revelations about the US National Security Agency’s Prism data surveillance program.  Shrems sued Facebook in Ireland, where it locates its servers for services to it’s EU user-base.  The High Court of Ireland referred the matter to the ECJ for a preliminary ruling.

While Bot’s ruling is preliminary, subject to confirmation by the ECJ and would only be directly binding as to Facebook, the recommendations found in Bot’s opinion upend many commercial practices regarding data transfer from the EU to US-based servers.  While the NSA’s Prism program targeted the data transfers of nine internet companies, such as Microsoft, Google, Apple, Facebook, etc. the unraveling of the Safe Harbor agreement could have far-reaching effects on any company with EU operations sending data about EU citizens, including employees, to the US.

The case is  Maximillian Schrems v Data Protection Commissioner, Case # C‑362/14, pending in Luxembourg.