Facebook Pushes Back Against Regulators on Data Transfer

Facebook has upped the ante in its showdown with European regulators, stating that an unfavorable decision by Ireland’s Data Protection Commission (DPC) would leave the company no choice but to leave the region. Facebook Ireland’s head of data protection/associate general counsel Yvonne Cunnane is referring to the DPC’s preliminary order to stop the transfer of its European users’ data to servers in the U.S., citing fears of government surveillance. In response, Facebook filed a lawsuit challenging DPC’s ban.

Vice reports that Facebook also accuses DPC of “a lack of fairness and apparent bias in singling out Facebook,” with Cunnane noting that the platform only got three weeks to respond to the decision. She also “raised concerns” about the decision having been made by the DPC commissioner Helen Dixon.

“The fact one person is responsible for the entire process is relevant to [Facebook’s] concerns, in respect of the inadequacy of the investigative process engaged in and independence of the ultimate decision-making process,” said Cunnane, who added that no other Big Tech company using the same transfer methods was investigated.

With the threat to leave Europe, “Facebook denies that it is trying to force the regulator to change its decision,” but rather said it is simply laying out how the company relies on data transfers to operate. Last week, a judge “allowed Facebook’s challenge to go ahead and put a stay on the DPC’s ban on data transfers — though the DPC can challenge that decision.”

Facebook and Instagram have 410 million European Union users and “also reportedly generated €208 billion in sales for companies who use the platforms.” At University College London, technology policy researcher Michael Veale called Facebook’s “ultimatum” an “absurd brinksmanship that I don’t think anyone truly believes.”

Ars Technica reports Cunnane said that Facebook is “an important tool for freedom of expression … [and that] Facebook ads have driven billions of dollars’ worth of business to European businesses.” As to what she said is Dixon’s out-sized authority over the decision, Cunnane noted that “traditionally, the initial investigation into a company’s practices is carried out by a different official than the official who makes the subsequent ruling on possible remedies for problems identified in an investigation.” Facebook considers it a “violation of its due process rights” that Dixon performed both roles.

TechCrunch reports Facebook vice president of global policy Nick Clegg said that the company will not shut down in Europe “precisely because we want to continue to serve customer and small and medium sized businesses in Europe.” But he did warn that not resolving the “current legal basis under which data transfers occur” would have “profound effects” on “not just our services, but countless other companies.”

He stated that the issue “in the end can only be resolved politically between a continued negotiation between the U.S. and the EU” that won’t take place until the new U.S. administration is sworn in after the presidential election.

Europe Ordered Facebook to Stop Sending User Data to the United States, Vice, 9/10/20
Ireland to Order Facebook to Stop Sending User Data to U.S., The Wall Street Journal, 9/9/20

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