European Union Regulation of Transatlantic Data Transfers and Online Surveillance

Abstract

This article provides an analysis of the Court of Justice of the European Union (CJEU) judgment in Schrems. It argues that this is a landmark decision for various reasons: it marks a victory of EU fundamental rights against Internet surveillance and confirms the broad reach of EU privacy law even outside the territorial borders of the EU. Nevertheless, two main lines of criticism are advanced. The first concerns the fundamental rights’ analysis of the CJEU, which fails to address some crucial problematic aspects of the US Internet surveillance programmes and modern electronic surveillance in general and raises confusion as to the concept of the ‘essence’ of fundamental rights. The second line of criticism regards the fundamental rights issues raised by Privacy Shield – the successor of the invalidated Safe Harbour – regarding transatlantic data transfers and the protection of EU persons’ fundamental rights from online surveillance after Schrems.

Keywords: Snowden revelations, Schrems CJEU decision, Privacy Shield, data protection

JEL Classification: K