Max Schrems (Salzburg, 1987) is a respected figure among experts. privacy. 23 years old, while still a student, Austrian lawyer and activist, Facebook caused him to break deals for his transfer. data between European Union (EU) and USA, defeating both powers and exposing bad practices tech giants.
this monday, Brussels And Washington signed a new agreement that reopened the transatlantic flow and promised European citizens that their privacy would not be left in the hands of intelligence agencies like the United States. NSA. For Schrems, the deal is more the same. “It will be canceled again,” he said in a phone call with EL PERIÓDICO DE CATALUNYA from the Prensa Ibérica group. That’s why since noob, the nonprofit he founded will take him to court. Third time lucky?
The European Commission (EC) says that the US now offers privacy guarantees and that spying services will not misuse our data, but it has said this before. Should we trust this promise?
Not exactly. The EC said there is no mass surveillance while the US has a law that makes it clear. What’s new is the executive order (issued by President Joe Biden in October 2022 to restrict access to European data), but this isn’t really new, it’s just an update. There are improvements, but there are also downsides: Surveillance is now also allowed to tackle health crises like climate change or coronavirus. While it was previously justified by terrorism, it is now expanding, so it’s interesting how the AK tries to paint a picture where everything is for the better. They are different words for the same thing.
“New order expands surveillance cases for health crises like climate change or covid”
The new framework was agreed between Von der Leyen and Biden. Were the complaints of some MPs not taken into account?
These decisions are made only by the EC. You should hear what the parliament is saying, but you don’t have to listen to it. Technically, parliament has delegated decision-making authority to the EC, so they have no business here. I have attended most of the hearings and very few MEPs understand what the real issues are, hardly anyone has read or properly compared the US executive order; is for or against the settlement without doing the necessary research to make a determination. Everyone knows it will be canceled again.
You have described the presentation of the agreement as a “public relations” action from Brussels. What role did Washington play?
The US didn’t move at all. It basically says: If you are not a US citizen, you have no rights. And they won’t change it because it’s ingrained in their culture.
“You have no right to the US if you are not a citizen of your own country. And that will not change”
You warrant that the deal is due to “political interests”. Which one?
A week after the start of the war in Ukraine, the US began using this as an argument to request data transfer to the EU. They came to say, “We are friends and we have to show everyone that we are close, so it’s better to do this now.” That same day, Biden announced it would be liquefied gas for Europe. No one knows if this is one quid pro quo, but the assumption is not exaggerated. It looks like a political agreement, not an evidence-based agreement. So it probably won’t work.
The tech business relies so heavily on this stream of data that Meta has even threatened to leave the company. EU if an agreement cannot be reached. What kind of pressure power does the industry have in Brussels?
I don’t think they have that much power in this particular case, most people hate Big Tech. What they usually do is act through industry lobbies who say a deal is crucial for small and medium European companies because everyone loves SMEs (laughs). Facebook doesn’t knock on America’s door, it pays a lobby with hundreds of members for it.
You will object to the contract again. When do you expect the case to reach CJUE?
We won’t have a case to present until the companies sign and implement the agreement. Probably in August or September. We can then go to local courts and file a lawsuit asking companies to stop practices that we consider unconstitutional. That judge has two choices: send the case straight to justice, or most likely dismiss it. What is usual in Austria is for them to reject it to the third degree and then by the Supreme Court to refer it to the CJEU in Luxembourg. So it could get there between the end of this year and the first half of 2024. Another way that might be faster is Facebook’s lawsuit pending in Ireland.
The commission knows the deal could be cancelled, but it thinks it will take two or three years and then Von der Leyen will no longer be president, so that’s not their problem.
What will happen to our data until then?
According to the treaties, the CJEU can suspend EC decisions in advance if it considers that the harm may outweigh the benefits and is open to annulment. Therefore, the agreement will not be valid while the case is being reviewed. This is unlikely to happen, maybe 10-20%, but that would be one of the only ways to stop legal ping pong. The AK more or less knows that it can be revoked, but believes it will take two or three years. Then Von der Leyen will no longer be president, and that will not be his problem. That’s pretty much what they thought last time. The CJEU can stop this legal table tennis by declaring the deal unacceptable. It’s very unlikely to happen, but if they come back with the same shit a third time, why not. Brussels’ position in terms of democracy and the rule of law is problematic because justice will always be slower to decide.
It is also problematic that Didier Reynders, the European Commissioner for Justice working on the deal, accuses NGOs like yours of reporting cases to the CJEU as a “business model”.
I am quite surprised that the commissioner for the rule of law and fundamental rights said this in general and for the cases he lost. We asked you to correct your statements. I personally don’t care, if I wanted to make money I would work at other things but if this becomes the norm in the EU we will be doing the same with Viktor Orbán in Hungary. It’s bad enough to hear those words in Budapest.