On Tuesday, the European Commission published two legislative proposals that could further cement an unfortunate trend towards privacy erosion in cross-border state investigations. Building on a foundation first established by the recently enacted U.S. CLOUD Act, these proposals compel tech companies and service providers to ignore critical privacy obligations in order to facilitate easy access when facing data requests from foreign governments. These initiatives collectively signal the increasing willingness of states to sacrifice privacy as a way of addressing pragmatic challenges in cross-border access that could be better solved with more training and streamlined processes.
The EU proposals (which consist of a Regulation and a Directive) apply to a broad range of companies1 that offer services in the Union and that have a “substantial connection” to one or more Member States.2 Practically, that means companies like Facebook, Twitter, and Google, though not based in the EU, would still be affected by these proposals. The proposals create a number of new data disclosure powers and obligations, including:
- European court orders that compel internet companies and service providers to preserve data they already stored at the time the order is received (European preservation orders);
- European court orders for content and ‘transactional’ data3 for investigation of a crime that carries a custodial sentence of at least 3 years or more (European production orders for content data);
- European orders for some metadata defined as “access data” (IP addresses, service access times) and customer identification data (including name, date of birth, billing data and email addresses) that could be issued for any criminal offense (European production orders for access and subscriber data);4
- An obligation for some service providers to appoint an EU legal representative who will be responsible for complying with data access demands from any EU Member State;
- The package of proposals does not address real-time access to communications (in contrast to the CLOUD Act).
Who Is Affected and How?
Such orders would affect Google, Facebook, Microsoft, Twitter, instant messaging services, voice over IP, apps, Internet Service Providers, and e-mail services, as well as cloud technology providers, domain name registries, registrars, privacy and proxy service providers, and digital marketplaces.
Moreover, tech companies and service providers would have to comply with law enforcement orders for data preservation and delivery within 10 days or, in the case of an imminent threat to life or physical integrity of a person or to a critical infrastructure, within just six hours. Complying with these orders would be costly and time-consuming.
Alarmingly, the EU proposals would compel affected companies (which include diverse entities ranging from small ISPs and burgeoning startups to multibillion dollar global corporations) to develop extensive resources and expertise in the nuances of many EU data access regimes. A small regional German ISP will need the capacity to process demands from France, Estonia, Poland, or any other EU member state in a manner that minimizes legal risks. Ironically, the EU proposals are presented as beneficial to businesses and service providers on the basis that they provide ‘legal certainty and clarity’. In reality, they do the opposite, forcing these entities to devote resources to understanding the law of each member state. Even worse, the proposal would immunize businesses from liability in situations where good faith compliance with a data request might conflict with EU data protection laws. This creates a powerful incentive to err on the side of compliance with a data demand at cost to privacy. There is no comparable immunity from the heavy fines that could be levied for ignoring a data access request on the basis of good-faith compliance with EU data protection rules.
No such liability limitation at all is available to companies and service providers subject to non-EU privacy protections. In some instances, the companies would be forced to choose between complying with EU data demands issued further to EU standards and complying with legal restrictions on data exposure imposed by other jurisdictions. For example, mechanisms requiring service providers to disclose customer identification data on the basis of a prosecutorial demand could conflict with Canada’s data protection regime. Personal Information Protection and Electronic Documents Act (PIPEDA), a Canadian privacy law, has been held to prevent service providers from identifying customers associated with anonymous online activity in the absence of a court order. As the European proposals purport to apply to domain name registries as well, these mechanisms could also interfere with efforts at ICANN to protect anonymity in website registration by shielding customer registration information.
The EU package could also compel U.S.-based providers to violate the Stored Communications Act (SCA), which prevents the disclosure of stored communications content in the absence of a court order.5 The recent U.S. CLOUD Act created a new mechanism for bypassing these safeguards—allowing certain foreign nations (if the United States enters into a “executive agreement” with them under the CLOUD Act) to compel data production from U.S.-based providers without following U.S. law or getting an order from a U.S. judge. However, the United States has not entered into any such an agreement with the EU or any EU member states at this stage, and the European package would require compliance even in the absence of one.
No Political Will to Fix the MLAT Process
The unfortunate backdrop to this race to subvert other states’ privacy standards is a regime that already exists for navigating cross-border data access. The Mutual Legal Assistance Treaty (MLAT) system creates global mechanisms by which one state can access data hosted in another while still complying with privacy safeguards in both jurisdictions. The MLAT system is in need of reform, as the volume of cross-border requests in modern times has strained some of its procedural mechanisms to the point where delays in responses can be significant. However, the fundamental basis of the MLAT regime remains sound and the pragmatic flaws in its implementation are far from insurmountable. Instead of reforming the MLAT regime in a way that would retain the current safeguards it respects, the European Commission and the United States seem to prefer to jettison these safeguards.
Perhaps ironically, much of the delay within the MLAT system arises from a lack of expertise in state agencies and officials in the data access laws of foreign states. Developing such expertise would allow state agencies to formulate foreign data access requests faster and more efficiently. It would also allow state officials to process incoming requests with greater speed. The EU proposals seek to bypass this requirement by effectively privatizing the legal assessment process: meaning that we're losing a real judge making real judgments. Service providers will now need to decide whether foreign requests are properly formulated under foreign laws. Yet the judicial authorities and state agencies are far better placed to make these assessments—not only from a resource management perspective, but also from a legitimacy perspective.
Contrary to this trend, European courts have continued to assert their own domestic privacy standards when protecting EU individuals’ data from access by foreign state agencies. Late last week, an Irish court questioned whether U.S. state agencies ( particularly the NSA and FBI who are granted broad powers under the U.S. Foreign Intelligence Surveillance Court) are sufficiently restrained in their ability to access EU individuals’ data. The matter was referred to the EU’s highest court and an adverse finding on the matter could prevent global communications platforms from exporting EU individuals’ data to the U.S. Such a finding could even prevent those same platforms from complying with some U.S. data demands regarding EU individuals’ data if additional privacy safeguards and remedies are not added. It is not yet clear what role such restrictions might ultimately play in any EU-U.S. agreement that might be negotiated under the U.S. CLOUD Act.
Ultimately, both the U.S. CLOUD Act and the EU proposal are a missed opportunity to work towards cross border data access regime that facilitates efficient law enforcement access and respects privacy, due process, and freedom of expression.
Unlike the last-minute rush to approve the U.S. CLOUD Act, there is still a long way to go before finalizing the EU proposals. Both documents need to be reviewed by the European Parliament and the Council of the European Union, and be subject to amendments. Once approved by both institutions, the regulation will become immediately enforceable as law in all Member States simultaneously, and it will override all national laws dealing with the same subject matter. The directive, however, will need to be transposed into national law.
We call on EU policy-makers to avoid the privatization of law enforcement and work instead to enhance judicial cooperation within and outside the European Union.
- 1. Specifically listed are: providers of electronic communications service, social networks, online marketplaces, hosting service providers, and Internet infrastructure providers such as IP address and domain name registries. See Article 2, Definitions.
- 2. A substantial connection is defined in the regulation as having an establishment in one or more Member States. In the absence of an establishment in the Union, a substantive connection will be the existence of a significant number of users in one or more Member States, or the targeting of activities towards one or more Member States (including factors such as the use of a language or a currency generally used in a Member State, availability of an app in the relevant national app store from providing local advertising or advertising in the language used in a Member State, from making use of any information originating from persons in Member States in the course of its activities, among others). See Article 3 Scope of the Regulation.
- 3. Transactional data is “generally pursued to obtain information about the contacts and whereabouts of the user and may be served to establish a profile of an individual concerned”. The regulation described transactional data as the “the source and destination of a message or another type of interaction, data on the location of the device, date, time, duration, size, route, format, the protocol used and the type of compression, unless such data constitutes access data.
- 4. The draft regulation states that access data is “typically recorded as part of a record of events (in other words a server log) to indicate the commencement and termination of a user access session to a service. It is often an individual IP address (static or dynamic) or other identifier that singles out the network interface used during the access session.”
- 5. Most large U.S. providers insist on a warrant based on probable cause to disclose content, although the SCA allows disclosure on a weaker standard in some cases.