More than 18 months after the EU began implementing the world’s toughest privacy law, the bloc's ability to rein in Big Tech is increasingly in doubt
More than 18 months after the European Union began implementing the world’s toughest privacy law, the bloc's ability to rein in Big Tech is increasingly in doubt amid growing frustration over a lack of enforcement actions and weak cooperation on investigations.
"After nearly one and a half years we must concede that we have a huge problem with the enforcement of cross border processing especially by globally acting companies," a spokesperson for the authority, one of 16 in Germany, told POLITICO, referring to cases that concern web users in more than one country.
In interviews with officials and privacy specialists around Europe, critics pointed to a range of problems in the bloc’s privacy system including: –Increasingly glaring differences in how EU watchdogs are interpreting the rules and, at times, breaking out of the one-stop-shop system to create what resembles a patchwork of privacy regimens instead of a single European landscape.
On the day the law was enforced, Austrian privacy lawyer Max Schrems filed four lawsuits against Facebook, Google, Instagram and WhatsApp, respectively, over the idea that they were "forcing" users to agree to have their personal data harvested in order to be able to use services.
Schrems and his colleagues say they are bound by confidentiality rules and cannot discuss the 66-page report on Ireland's probe, which looks into whether Facebook users gave users a real choice over having their data collected if they wanted to use the platform. But people familiar with their thinking say they are less than satisfied with the outcome, and could bring objections through the Austrian court system.
The slow pace fits in with a track record of easygoing treatment of Facebook from before the GDPR era, when the Irish regulator had next to zero power to sanction firms, Schrems and other critics say. Another long-waiting party is La Quadrature du Net, a French digital rights group that filed no fewer than seven lawsuits against five big tech companies just a few days after GDPR came online. One of the cases, concerning Google's Android mobile operating system, resulted in the French CNIL regulator hitting the search giant with a €50 million fine in January of 2019 for breaching GDPR by failing to obtain legally valid consent for gathering their data for ad personalization.
Both cases are pending, and several complainants told POLITICO they were considering further legal action to force data protection authorities to get moving via what's called an "urgency procedure" in the GDPR. Speaking to the "International Grand Committee on Fake News" held in Dublin in November, Ryan said that he could sue regulators to push things along.
"We're all impatient," she said. The problem was that there was nothing her office could to do speed up the clock on legal procedures that granted companies a right of response. In the case of the WhatsApp probe — in which the company is suspected of having failed to give users enough information about how their personal data was being shared with parent company Facebook — lawyers for the firm had raised objections, which needed to be taken into account.
For Andrea Jelinek, the Austrian privacy chief who chairs the umbrella group of EU privacy regulators, the unbroken record of decision-via-consensus amounts to proof that Europe's enforcement system is working. Those cases "were not that glamorous but they were important.” Hamburg's more recent comments — citing "unacceptable" delays — suggest frustration over WhatsApp and other pending data protection matters is reaching a boiling point. And Hamburg is not alone, as Ulrich Kelber, the head of Germany's federal privacy watchdog, voiced concerns in November that Ireland may lack sufficient funding to carry out its frontline mission to regulate Big Tech.
"For email and case management they are using the same basic technology I began my career administering in a telco back in 1997," he added.Another sore point is how well, or how poorly, Europeans are working together to enforce a bloc-wide privacy regulation that is meant to be a gold standard for the world. Under the current system, any investigation that concerns users in more than one country can prompt investigative assistance from other countries.
Reasons invoked for not doing so included language barriers, disparities between judicial systems in different EU countries and legal restrictions in some states. In the absence of a centralizing force, regulators are starting to forge ahead with the own national actions, raising the possibility of patchwork decision-making that the GDPR sought to avoid with the “one stop shop” provision that designated each firm’s headquarters country as lead regulator.
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