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EU-US Privacy Shield passes third Commission ‘health check’ — but litigation looms

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The third annual review of the EU-US Privacy Shield data transfer mechanism has once again been nodded through by Europe’s executive.

This despite the EU parliament calling last year for the mechanism to be suspended.

The European Commission also issued US counterparts with a compliance deadline last December — saying the US must appoint a permanent ombudsperson to handle EU citizens’ complaints, as required by the arrangement, and do so by February.

This summer the US senate finally confirmed Keith Krach — under secretary of state for economic growth, energy, and the environment — in the ombudsperson role.

The Privacy Shield arrangement was struck between EU and US negotiators back in 2016 — as a rushed replacement for the prior Safe Harbor data transfer pact which in fall 2015 was struck down by Europe’s top court following a legal challenge after NSA whistleblower Edward Snowden revealed US government agencies were liberally helping themselves to digital data from Internet companies.

At heart is a fundamental legal clash between EU privacy rights and US national security priorities.

The intent for the Privacy Shield framework is to paper over those cracks by devising enough checks and balances that the Commission can claim it offers adequate protection for EU citizens personal data when taken to the US for processing, despite the lack of a commensurate, comprehensive data protection region. But critics have argued from the start that the mechanism is flawed.

Even so around 5,000 companies are now signed up to use Privacy Shield to certify transfers of personal data. So there would be major disruption to businesses were it to go the way of its predecessor — as has looked likely in recent years, since Donald Trump took office as US president.

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The Commission remains a staunch defender of Privacy Shield, warts and all, preferring to support data-sharing business as usual than offer a pro-active defence of EU citizens’ privacy rights.

To date it has offered little in the way of objection about how the US has implemented Privacy Shield in these annual reviews, despite some glaring flaws and failures (for example the disgraced political data firm, Cambridge Analytica, was a signatory of the framework, even after the data misuse scandal blew up).

The Commission did lay down one deadline late last year, regarding the ongoing lack of a permanent ombudsperson. So it can now check that box.

It also notes approvingly today that the final two vacancies on the US’ Privacy and Civil Liberties Oversight Board have been filled, meaning it’s fully-staffed for the first time since 2016.

Commenting in a statement, commissioner for justice, consumers and gender equality, Věra Jourová, added: “With around 5,000 participating companies, the Privacy Shield has become a success story. The annual review is an important health check for its functioning. We will continue the digital diplomacy dialogue with our U.S. counterparts to make the Shield stronger, including when it comes to oversight, enforcement and, in a longer-term, to increase convergence of our systems.”

Its press release characterizes US enforcement action related to the Privacy Shield as having “improved” — citing the Federal Trade Commission taking enforcement action in a grand total of seven cases.

It also says vaguely that “an increasing number” of EU individuals are making use of their rights under the Privacy Shield, claiming the relevant redress mechanisms are “functioning well”. (Critics have long suggested the opposite.)

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The Commission is recommending further improvements too though, including that the US expand compliance checks such as concerning false claims of participation in the framework.

So presumably there’s a bunch of entirely fake compliance claims going unchecked, as well as actual compliance going under-checked…

“The Commission also expects the Federal Trade Commission to further step up its investigations into compliance with substantive requirements of the Privacy Shield and provide the Commission and the EU data protection authorities with information on ongoing investigations,” the EC adds.

All these annual Commission reviews are just fiddling around the edges, though. The real substantive test for Privacy Shield which will determine its long term survival is looming on the horizon — from a judgement expected from Europe’s top court next year.

In July a hearing took place on a key case that’s been dubbed Schrems II. This is a legal challenge which initially targeted Facebook’s use of another EU data transfer mechanism but has been broadened to include a series of legal questions over Privacy Shield — now with the Court of Justice of the European Union.

There is also a separate litigation directly targeting Privacy Shield that was brought by a French digital rights group which argues it’s incompatible with EU law on account of US government mass surveillance practices.

The Commission’s PR notes the pending litigation — writing that this “may also have an impact on the Privacy Shield”. “A hearing took place in July 2019 in case C-311/18 (Schrems II) and, once the Court’s judgement is issued, the Commission will assess its consequences for the Privacy Shield,” it adds.

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So, tl;dr, today’s third annual review doesn’t mean Privacy Shield is out of the legal woods.

NEWS

Google December Product Reviews Update Affects More Than English Language Sites? via @sejournal, @martinibuster

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Google’s Product Reviews update was announced to be rolling out to the English language. No mention was made as to if or when it would roll out to other languages. Mueller answered a question as to whether it is rolling out to other languages.

Google December 2021 Product Reviews Update

On December 1, 2021, Google announced on Twitter that a Product Review update would be rolling out that would focus on English language web pages.

The focus of the update was for improving the quality of reviews shown in Google search, specifically targeting review sites.

A Googler tweeted a description of the kinds of sites that would be targeted for demotion in the search rankings:

“Mainly relevant to sites that post articles reviewing products.

Think of sites like “best TVs under $200″.com.

Goal is to improve the quality and usefulness of reviews we show users.”

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Google also published a blog post with more guidance on the product review update that introduced two new best practices that Google’s algorithm would be looking for.

The first best practice was a requirement of evidence that a product was actually handled and reviewed.

The second best practice was to provide links to more than one place that a user could purchase the product.

The Twitter announcement stated that it was rolling out to English language websites. The blog post did not mention what languages it was rolling out to nor did the blog post specify that the product review update was limited to the English language.

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Google’s Mueller Thinking About Product Reviews Update

Screenshot of Google's John Mueller trying to recall if December Product Review Update affects more than the English language

Screenshot of Google's John Mueller trying to recall if December Product Review Update affects more than the English language

Product Review Update Targets More Languages?

The person asking the question was rightly under the impression that the product review update only affected English language search results.

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But he asserted that he was seeing search volatility in the German language that appears to be related to Google’s December 2021 Product Review Update.

This is his question:

“I was seeing some movements in German search as well.

So I was wondering if there could also be an effect on websites in other languages by this product reviews update… because we had lots of movement and volatility in the last weeks.

…My question is, is it possible that the product reviews update affects other sites as well?”

John Mueller answered:

“I don’t know… like other languages?

My assumption was this was global and and across all languages.

But I don’t know what we announced in the blog post specifically.

But usually we try to push the engineering team to make a decision on that so that we can document it properly in the blog post.

I don’t know if that happened with the product reviews update. I don’t recall the complete blog post.

But it’s… from my point of view it seems like something that we could be doing in multiple languages and wouldn’t be tied to English.

And even if it were English initially, it feels like something that is relevant across the board, and we should try to find ways to roll that out to other languages over time as well.

So I’m not particularly surprised that you see changes in Germany.

But I also don’t know what we actually announced with regards to the locations and languages that are involved.”

Does Product Reviews Update Affect More Languages?

While the tweeted announcement specified that the product reviews update was limited to the English language the official blog post did not mention any such limitations.

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Google’s John Mueller offered his opinion that the product reviews update is something that Google could do in multiple languages.

One must wonder if the tweet was meant to communicate that the update was rolling out first in English and subsequently to other languages.

It’s unclear if the product reviews update was rolled out globally to more languages. Hopefully Google will clarify this soon.

Citations

Google Blog Post About Product Reviews Update

Product reviews update and your site

Google’s New Product Reviews Guidelines

Write high quality product reviews

John Mueller Discusses If Product Reviews Update Is Global

Watch Mueller answer the question at the 14:00 Minute Mark

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