It's questionable to me whether a court order of a non-eu court applies. "The law" is EU law, not American law.
If any non-eu country can circumvent GDPR by just making a law that it doesn't apply, the entire point of the regulation vanishes.
Doesn't that work both ways? Why should the EU be able to override American laws regarding an American company?
It doesn't really matter from what country the company is. If you do business in the EU then EU laws apply to the business you do in the EU. Just like EU companies adhere to US law for the business they do in the US.
Because we're talking about the personal data of EU citizens. If it's to be permitted to be sent to America at all, that must come with a guarantee that EU-standard protections will continue to apply regardless of American law.
> If it's to be permitted to be sent to America at all
Do you mean that I, an EU citizen am being granted some special privilege from EU leadership to send my data to the US?
It's the other way around. The EU has granted US companies a temporary permission to handle EU customers' data. https://en.m.wikipedia.org/wiki/EU%E2%80%93US_Data_Privacy_F...
I say temporary because it keeps being shot down in court for lax privacy protections and the EU keeps refloating it under a different name for economic reasons. Before this name it was called safe harbor and after that it was privacy shield.
No, the company you're sending it to is required to care for it. Up to and including refusing to accept that data if need be.
Of course you don't need permission to do something with your own data. But if someone wants to process other people's data, that's absolutely a special privilege that you don't get without committing to appropriate safety protocols.
It works the other way around; the American company is granted a special privilege to retrieve EU citizen data.
I'm not sure they are "retrieving" data. People register on the website and upload stuff they want to be processed and used.
I mean, sometimes the government steps in when you willingly try to hand over something on your own will, such as very strict rules around organ donation, I can't simply decide to give my organs to some random person for arbitrary reasons even if I really want to. But I'm not sure if data should be the same category where the government steps in and says "no you can't upload your personal data to an American website"
Likewise, why should America be able to override European laws regarding European users in Europe?
It's all about jurisdiction. Do business in Country X? Then you need to follow Country X's laws.
Same as if you go on vacation to County Y. If you do something that is illegal in Country Y while you are there, even if it's legal in your home country, you still broke the law in Country Y and will have to face the consequences.
Because EU has jurisdiction when the american company operates in the EU.
It’s WAY more complicated than that.
Where is the HQ of the company?
Where does the company operate?
What country is the individual user in?
What country do the servers and data reside in?
Ditto for service vendors who also deal with user data.
Even within the EU, this is a mess and companies would rather use a simple heuristic like put all servers and store all data for EU users in the most restrictive country (I’ve heard Germany).
> Where is the HQ of the company?
If outside EU, then they need to accept EU jurisdiction and notify who is representative plenipotentiary (== can make decisions and take liability on behalf of the company).
> Where does the company operate?
Geography mostly doesn't matter as long as they interact with EU people. Because people are more important.
> What country is the individual user in?
Any EU (or EEA) country.
> What country do the servers and data reside in?
Again, doesn't matter, because people > servers.
It's almost like if bureaucrats who are writing regulations are experienced in writing regulations in such a way they can't be circumvented.
EDIT TO ADD:
From OpenAI privacy policy:
> 1. Data controller
> If you live in the European Economic Area (EEA) or Switzerland, OpenAI Ireland Limited, with its registered office at 1st Floor, The Liffey Trust Centre, 117-126 Sheriff Street Upper, Dublin 1, D01 YC43, Ireland, is the controller and is responsible for the processing of your Personal Data as described in this Privacy Policy.
> If you live in the UK, OpenAI OpCo, LLC, with its registered office at 1960 Bryant Street, San Francisco, California 94110, United States, is the controller and is responsible for the processing of your Personal Data as described in this Privacy Policy.
As you astutely note, the company probably has it's "HQ" (for some legal definition of HQ) a mere 30 minutes across Dublin (Luas, walk in rain, bus, more rain) from the Data Protection Commission. It's very likely that whatever big tech data-hoarder you choose has a presence very close to their opposite number in both of these cases.
If it was easier or more cost-effective for these companies not to have a foot in the EU they wouldn't bother, but they do.
> It's almost like if bureaucrats who are writing regulations are experienced in writing regulations in such a way they can't be circumvented.
Americans often seem to have the view that lawmakers are bumbling buffoons who just make up laws on the spot with no thought given to loop holes or consequences. That might be how they do it over there, but it's not really how it works here.
Maybe when talking about the GDPR specifics, but not when it comes to whether the EU has jurisdiction over companies in the EU.
They can't override laws of course, but it could mean that if two jurisdictions have conflicting laws, you can't be active in both of them.
Because it's European users whose data is being recorded on the order of a court that doesn't even have jurisdiction over them?
You don't understand how that works:
EU companies are required to act in compliance with the GDPR. This includes all sensitive data that is transfered to business partners.
They must make sure that all partners handle the (sensitive part of the) transfered data in a GDPR compliant way.
So: No law is overriden. But in order to do business with EU companies, US companies "must" offer to treat the data accordingly.
As a result, this means EU companies can not transfer sensitive data to US companies. (Since the president of the US has in principle the right to order any US company to turn over their data.)
But in practice, usually no one cares. Unless someone does and then you might be in trouble.
> GDPR: “Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognized or enforceable if based on an international agreement…”
That is why international agreements and cooperation is so important.
Agreement with the United States on mutual legal assistance: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=legissum...
Regulatory entities are quite competent and make sure that most common situations are covered. When some new situation arises an update to the treaty will be created to solve it.
Seems like the EU should be less agreeable with these kinds of treaties going forward. Though precedent is already set by the US that international agreements don't matter so arguably the EU should just ignore this.
> Regulatory entities are quite competent and make sure that most common situations are covered.
There's "legitimate interest", which makes the whole GDPR null and void. Every website nowdays has the "legitimate interest" toggled on for "track user across services", "measure ad performance" and "build user profile". And it's 100% legal, even though the official reason for GDPR to exist in the first place is to make these practices illegal.
Exactly. The ECJ flapped a bit in 2019 about this but then last year opined that the current interpretation "legitimate interest" by the Dutch DPA is too strict (on the topic of whether purely commercial interests counts)
It's a farce and just like the US constitution they'll just continuously argue about the meanings of words and erode then over time
None of those use cases are broadly thought of as legitimate interest and explicitly require some sort of consent in Europe.
Session cookies and profiles on logged in users is where I see most companies stretching for legitimate interest. But cross service data sharing and persistent advertising cookies without consent are clearly no bueno.
> But cross service data sharing and persistent advertising cookies without consent are clearly no bueno.
https://www.reddit.com/media?url=https%3A%2F%2Fpreview.redd....
"legitimate interest" is a fact about the data processing. It cannot be "toggled on". It also does not invalidate all other protections (like the prevention of data from leaving the EEA).
legitimate interest is, for example - have some way to identify user who is logged in. So keep email address for logged in users. Have some way to identify people who are trying to get account that have been banned, so have a table of banned users with email addresses for example.
none of these others are legitimate interest. Furthermore combining the data from legitimate interest (email address to keep track of your logged in user) with illegitimate goals such as tracking across services would be illegitimate.
"legitimate interest" isn't a carte blanche. Most of those "legitimate interest" claims are themselves illegal
Legitimate interest includes
- Direct Marketing
- Preventing Fraud
- Ensuring information security
It's weasel words all the way down. Having to take into account "reasonable" expectations of data subjects etc. Allowed where the subject is "in the service of the controller"
Very broad terms open to a lot of lengthy debate
None of these allow you to just willy-nilly send/sell info to third parties. Or use that data for anything other than stated purposes.
> Very broad terms open to a lot of lengthy debate
Because otherwise no law would eve be written, because you would have to explicitly define every single possible human activity to allow or disallow.
preventing fraud and info security are legitimate, direct marketing may be legitimate but probably is not.
direct marketing that I believe is legitimate - offers with rebate on heightened service level if you currently have lower service level.
direct marketing that is not legitimate, this guy has signed up for autistic service for our video service (silly example, don't know what this would be), therefore we will share his profile with various autistic service providers so they can market to him.
> preventing fraud
Fraud prevention is literally "collect enough cross-service info to identify a person in case we want to block them in the future". Weasel words for tracking.
> therefore we will share his profile with various autistic service providers so they can market to him.
This again falls under legitimate interest. The user, being profiled as x, may have legitimate interest in services targeting x. But we can't deliver this unless we are profiling users, so we cross-service profile users, all under the holy legitimate interest
> Fraud prevention is literally "collect enough cross-service info to identify a person in case we want to block them in the future". Weasel words for tracking.
You're literally not allowed to store that data for years, or to sell/use that data for marketing and actual tracking purposes.
You would not be allowed if not for legitimate interest.
Websites A and B buy fraud prevention service FPS, website A flags user x as fraudulent, how should FPS flag user x as high risk for website B if consent from user x was required?
Legitimate interest literally allows FPS to track users, build cross-service profiles, process and store their data in case FPS needs that data sometime in the future. Under legitimate interest response to query "What's the ratio of disputed transactions for this user?" is perfectly legal trigger to put all that data to use, even though it is for all intents and purposes indistinguishable from pre-GDPR tracking.
And how funny - I just got an email from Meta about Instagram:
"Legitimate interests is now our legal basis for using your information to improve Meta Products"
Fun read https://www.facebook.com/privacy/policy?section_id=7-WhatIsO...
But don't worry, "None of these allow you to just willy-nilly send/sell info to third parties." !
