France v. Google

France's top privacy regulator, the CNIL (Comission nationale de l’informatique et des libertés), is attempting to get Google to enforce the EU right to forgotten outside EU borders.  Last year Google was fined €100,000 for failing to do so.  The right does not involve taking info off line but does require search engines to correct or remove results in searches for a person's full name.  

Today the Conseil d'Etat referred the case to the EU's Court of Justice.   See the decision posted here

The French court noted that while users that browse to google.com will be redirected to a google search engine for their particular country, search engines for other domains are still accessible and results still come from a single indexing database.  

Schrems' Day in Court in Ireland Once Again

The Tip of the Night for October 11, 2015, described the ruling of the EU Court of Justice in Schrems v. Data Protection Commissioner. The Irish Data Protection Commissioner had rejected a claim by Schrems that the American data protection scheme did not provide the level of protection required under EU privacy law. The EU Court of Justice overturned this ruling, in effect invalidating the safe harbor scheme developed by the United States Department of Commerce for allowing the transfer of personal data to the United States under EU privacy law.

On December 1, 2015, Schrems filed an update to his initial complaint against Facebook with Ireland's Data Protection Commissioner against Facebook. Schrems' position is that Facebook's Standard Contractual Clauses should not provide an alternate means of transferring data outside of the safe harbor scheme, and the Irish Data Protection Commissioner agreed with him. The case is now under review by the Irish High Court before Judge Caroline Costello, who may uphold the DPC's decision and refer the case to the Court of Justice of the European Union. Facebook's right to transfer data under the SCCs has not been suspended for the time being. The trial before the High Court concluded on March 15, 2017. The court may decide that the question of the validity of the SCCs should be heard by the Court of Justice of the European Union. Check this page on the site of Ireland's Data Protection Commissioner for a final ruling in the case.

Judge Peck on the EU-U.S. Privacy Shield

This evening I attended a discussion hosted by the Sedona Conference at the offices of BakerHostetler at Rockefeller Center in Manhattan. The topic of the discussion was, "Practical Solutions to the Challenges and UncertaintyAssociated with the EU-U.S. Privacy Shield". The panel was composed of Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York; Emily Fedeles, an associate with BakerHostetler; and Stacey Blaustein, a Senior Attorney and Global E-Discovery Lead at IBM.

The panel briefly discussed the Schrems decision of a year ago. They laughed about how ironic it was that a law student had found the time to bring the case, and joked that someone could have prevented all the trouble caused by the overturning of the U.S./E.U. safe harbor scheme by giving him a job with an American law firm. The group focused on the new privacy shield adopted in response to the Schrems decision and the General Data Protection Regulation which will be fully implemented in May 2018 in the European Union after a two year transition period.

Stacey Blaustein noted that business can certify online at https://www.privacyshield.gov. The site leads companies through the process step by step. She discussed how the new framework has avenues of redress built in. The FTC has jurisdiction under section 5 of the FTC Act for adjudicating violations of the Privacy Shield Principles. Blaustein mentioned the September 30, 2016 deadline for companies to self-certify and gain a nine month grace period to update contracts made with data processors.

Ms. Fedeles said that under the new framework companies would have a 45 day deadline to address specific concerns raised by complainants. She also noted the many companies have already certified. See the list here.

Ms. Blaustein talked about the onward transfer or downward stream exchange of data, and mentioned that vendors may not have to certify but need to comply with the same standards as the companies who engage them.

The panel noted the the FTC's jurisdiction only extends to the industries that it regulates. Ms. Blaustein noted that is precluded from exercising jurisdiction over transportation.

Judge Peck talked about the anonymization of data as a potential solution to the problem of producing documents covered by European data privacy laws. He speculated that under the new GDPR review will still take place in the European Union, with anonymization taking place before ESI was transferred to the United States.

Ms. Fedeles noted that certification can be rescinded, which would lead to a company having to delete the data it had collected. Audits are conducted under the new privacy shield regime.

Judge Peck discussed cross border discovery in the context of the 1987 United State Supreme Court decision, Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa,482 US 522 (1987) . Five factors were given to judge whether or not international discovery could be conducted despite a foreign blocking statute:

"(1) the importance to the . . . litigation of the documents or other information requested;

"(2) the degree of specificity of the request;

"(3) whether the information originated in the United States;

"(4) the availability of alternative means of securing the information; and

"(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located."

Judge Peck noted that over the years two additional factors were added in effect to this Societe Nationale test - the hardship imposed on the producing party and whether or not the request was made in good faith. He blamed bad lawyering for over relying on the fifth factor to justify cross border discovery.

He mentioned the 2007 'Christopher X' case in which a French court only imposed a €10000 fine for the violation of a blocking statute, has been used in American courts to encourage the practice of violating such statutes.

Judge Peck warned that under the new GDPR companies could face fines potentially high as 4% of global gross revenue - not just profit. He said if foreign data currently located in the United States no longer fell under provisions allowing for its exchange, there was a good argument for it being protected under cross border discovery rules, but he felt that this was something other judges would have to be educated about.

Judge Peck noted that a party won't necessarily be sanctioned for the disclosure of private data it moves 'downstream', if it uses proper contracts. He did not know if a negligence standard or something else would be used to evaluate whether or not a party had used proper methods for transferring data.

Ms. Blaustein noted that if possible recipients should only get data for a specific purpose. The panel reminded the audience that the United Kingdom after Brexit, and Switzerland would not be bound by European data privacy laws.

Judge Peck observed that Britain was one country in which discovery could be obtained quickly through the Hague Convention - in part because the British disclosure process is similar to American discovery.