Last week, President Biden signed an executive order formalizing a new agreement with the European Union to secure the transfer of personal data across the Atlantic. The general framework of the agreement is mainly targeted at synchronizing American security law with European privacy laws. 

It's also the first step toward letting American companies resume data transfers collected on European citizens into the U.S. while abiding by Europe's privacy rights. If the agreement passes Europe’s High Court, the U.S. will set up an unprecedented legal apparatus: special courts hosted and funded by the U.S. government that preside over rights granted to foreigners that U.S. citizens still don’t have. 

The saga began almost a decade ago when Edward Snowden's leaks revealed that the National Security Agency had been accessing data from U.S. tech firms on European citizens without their knowledge. A slew of lawsuits led by Austrian privacy advocate Max Schrems argued that this arrangement between the tech firms and U.S. security agencies violated Europe's privacy protections under the U.N.'s Charter of Human Rights, which guarantees that citizens have their data processed fairly, with their consent, and for specified purposes. 

In 2015, Europe's High Court struck down the 15-year-old Safe Harbor agreement for data transfers and then in 2020 axed the Privacy Shield because both did not adequately protect citizens' privacy rights. The rulings were seen as victories by privacy advocates. Tech companies scrambled to put together a web of standard contractual clause agreements so that they could continue operating in Europe, but the contracts rested on shaky grounds. 

For the last two years, American tech companies have been exchanging European data without any official comprehensive agreement in place, and many tech corporations have complained about the uncertainty. Earlier this year, Meta threatened to stop operating Facebook in Europe unless the EU could strike a more formal agreement with the U.S. on data transfers.  

In response to Biden’s executive order, tech companies along with other firms not typically associated with data processing such as General Motors have applauded the framework as a step toward returning to business as usual. But privacy advocates say the order doesn't go nearly far enough to ensure that data protections for European citizens are met. 

The executive order sets up an entirely new legal apparatus to address complaints from European citizens who believe their privacy rights have been violated. The legal structure is similar to the quasi-judicial panels set up under the World Trade Organization to handle foreign dispute settlements. In addition, the agreement establishes a Data Protection Review Court within the Department of Justice to review complaints about American security agencies' use of European personal data. The order also sets certain criteria for these reviews. U.S. agencies will have to limit their data collection within a scope of defined national security purposes and only gather personal information "in a necessary and proportionate manner. "

European privacy activists are skeptical the order will accomplish its intended goals or even pass muster with European courts. Schrems has raised doubts that the data collection limitations outlined in the executive order will be effective. "The continuation of bulk collection is allowed as long as it's for a transnational criminal threat, a vague enough definition that it won't change the status quo much," he said at an online press conference held last week by the Transatlantic Consumer Dialogue. Schrems added that the order is unlikely to hold up in European court owing to the varying definitions under U.S. and European law of "proportionate" data collection on individuals. 

At the very least, the order does acknowledge that European citizens possess privacy rights that Americans don't have and sets up a redress procedure. But as Calli Schroeder, global privacy counsel at the Washington, D.C.-based Electronic Privacy Information Center, sees it, the agreement's attempts to "equalize" the playing field between U.S. and European citizens could be worse for Europeans. 

"Equalizing rights between U.S. and non-U.S. persons only goes so far because if U.S. citizens don't have the same privacy rights as Europeans than equalizing will only lower the standards for Europeans under review in U.S. courts," said Schroeder at the Transatlantic Consumer Dialogue press conference. " If anything it should be a prompt to raise the privacy rights of U.S. citizens." 

The Open Markets Institute last week hosted a conference in Brussels, titled “How Monopoly Threatens Democracy and Security: The Next Stage of the Fight in Europe.” European civil society groups SOMO, LobbyControl, and The Balanced Economy Project co-hosted the event.

The event included keynotes by MEP Stephanie Yon-Courtin of France and MEP Paul Tang of the Netherlands, as well as keynotes by Christy Hoffman, the secretary general of UNI Global Union, and Max Schrems, the pioneering privacy activist.

The event marked the first public discussion in Brussels of the political and economic threats posed by the extreme concentration of industrial capacity in Taiwan and China; the first in-depth public discussion of the European Commission’s failure to use all of its antimonopoly authority to address today's most pressing threats posed by concentration; the first public discussion in Brussels about the role played by the consumer welfare philosophy; and the first speech making clear that Europe’s workers believe that the concentrated power and control of Big Tech corporations poses threats to democracy and free speech.

MEP Tang’s announcement of a major effort to rein in pro-monopoly astroturf groups supported by Big Tech was covered by Tang by Politico. 

🔊 ANTI-MONOPOLY RISING:

We appreciate your readership. Please consider making a contribution to support the continued publication of this newsletter. 

🔎 TIPS? COMMENTS? SUGGESTIONS?