Privacy Shield cancelled: how, why and what now?

On the 16th of July, the Court of Justice of the European Union decided to declare the agreement EU-VS Privacy Shield invalid. With that it has once again become clear what European experts have claimed for years: Organisations who choose for optimal privacy and data-security, are wise when choosing for a European cloud provider. 

The European invalidation of the Privacy Shield is a set-back for the Americans, who, in 2015, saw the predecessor of this agreement, Safe Harbor, be declared invalid. The judgement of the European Court means that the Privacy Shield for organisations in the European Union cannot be a basis to pass along personal data to the United States. 

Not GDPR-proof 

The primary reason for the decision of the court is that the GDPR-security level for personal data could not be sufficiently guaranteed. According to American legislation, the authorities in the United States have the right to look at and use the data of EU-citizens; a right which goes a lot futher that just looking at essential data. The European Data Protection Board (EDPB) is researching what the practical implications of the ruling of the court is and what the eventual next steps can be. 

Doubts and Scepticism 

From day one, the Privacy Shield has been under attack, mostly because of the threat of privacy. That is why some experts were wondering to what extend certain topics of the treaty would be complied in practise. Alongside that, the controllability was questioned: how do you know for sure that all parties will conform to the agreements? Also the promise of the Americans that they would not conduct a ‘large-scale surveillance’ on the exchanged data created scepticism. All in all, everyone agreed that the Privacy Shield mostly offered fake-privacy. 

What is Wisdom? 

Now that the treaty is definitely cancelled, we could say: it is better to have no agreement than a bad agreement. But in the mean time the question continues to be if it is wise to entrust privacy sensitive data to parties who have there cloud servers located in the US. What is precisely happening with that information now that there is no international treaty with clearly dictated rules. The legislative uncertainty remains large. When selecting a cloud provider it is also still important to be aware of the owner of the datacentre. If a European datacentre has an American owner, it is formally under American supervisory legislation. Therefore, a difficult situation can be created, because every European datacentre also belongs to the GDPR. Another scenario: if a European datacentre and its American owner detach from each other, where does the data go to? Another point which should be of interest is cloud providers from outside the European Union who offer the possibility of saving data in Europe. This can be done without additional measures, as long as there is no data-processing which happens outside the EU. However, than you need to be extra careful that there is no party outside the EU involved. Vigilance is therefore very important, also when subcontractors are hired by data processors.

Better safe than sorry

As long as there is no air-tight treaty on the table in which all points of the GDPR are guaranteed, it is wise to choose for European servers with local storage-facilities. That is the best way to ensure that privacy-sensitive data can no longer be consulted by the NSA or other American services. And because the US and Europe are so fundamentally different in terms of privacy rights for civilians, this wil continue to be the same for the coming years.

The decision of the european court definitely speaks in the advantage of Previder and our datacenters. We can also see this in the growth of our datacenter- and cloud-services from the recent years. However, legislative grounds are not the only arguments to choose for European datacentres. Most organisations want to know who they are doing business with, where their data is kept and how business is being arranged by us. that kind of trust is probably just as important. 

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