The technology industry will receive the heaviest blow from the decision, and for Silicon Valley this is yet another unpleasant surprise from the ECJ. US tech companies are still reeling from last year’s decision on the right to be forgotten. And just like they did last year, companies will comply — but not before unleashing a litany of complaints against Europe.
Many of those complaints rest on shaky ground. To single out European courts for destroying cloud computing, for example, would be a mistake, as US courts are also to blame. A legal case against Microsoft currently making its way through the US court system might force American companies to disclose information about their users regardless of where in the world that information is stored. Imagine the outcry in America if China or Russia did this.
The ECJ ruling will not be liked by many European officials either. The court has refused to accept the one (and increasingly only) rationale advanced by commission officials about data — namely that it is of great utility in promoting trade and economic growth. In Brussels, the “free flow of data” has become the slogan du jour — much like the “free flow of goods and services” was a few decades earlier. But personal data, as the ECJ ruling reminds us, does not arise in a vacuum and there is always a human story behind it. Trading data, as we do olives or cars, seems inhumane.
Alas, Europe’s own record on surveillance is disappointing. One would be hard pressed to find the differences between core provisions of the new surveillance law in France — which includes the controversial practice of using algorithms to analyse metadata to identify potential suspects — and those at work in America. France’s high court has found this practice constitutional, even if some prior decisions from the ECJ would suggest such practices do go against European legislation.
As long as such attempts lead to more secure and encrypted technological alternatives — providing some relief to those seeking to escape the global reach of American courts, spies and corporations — such efforts are to be celebrated, not condemned. It is a pity that European governments, unlike European courts, are unwilling to endorse them.