The only fix it to remove all legal ground for American officials to get access to data about EU citizens.
The main reason American companies are barred from processing personal information for European consumers is that Europeans don't have the necessary rights under American law to safeguard their data. Through an executive order and other political tools, this is being changed. Once that's done, there's no legal reason why the USA can't receive a competency decision from the EU.
Various DPAs are sceptical about the work being done on the American side exactly because of the way this is implemented (executive rather than legislative branch) and the possibility that existing laws will make effective protection impossible anyway. I personally wouldn't trust the country behind the Hague Invasion Act to protect the rights of foreign citizens.
How does this work when it goes the other way? Suppose a French company in Paris had some data and they stored that data in AWS in the us-east-1 region. A French police or intelligence agency gets a court order (or whatever is the French equivalent) asking the company to turn over a copy of that data.
Can the company refuse (without getting in legal trouble) on the grounds that the data is not stored in France?
The company wouldn't have to refuse anything, because they wouldn't even be aware that this is happening at all. All the company knows is that they host data on US servers.
I mean this is what Snowden described many years ago, it's probably way worse, more legalized and even more automated now.
So no, they would not get into trouble (if based in EU)
No other country's laws would be involved in the scenario I asked about. It does not violate any US law for a company that has stored data in US AWS to retrieve that data.
The French authorities would be asking the French company to give them a copy of data that the French company controls and has legal access to. All the French company has to do to comply is make an API request to AWS, something they presumably routinely do.
If merely storing documents outside of your own country, but still within your control (in the sense that you can retrieve them any time you need them by asking whoever/whatever is holding them for you in the other country), is sufficient to make it so your own country can no longer legally compel you to turn over copies of those documents I don't see how that would not lead to massive problems for that country.
Wouldn't every company making consumer products, for example, store all documents produced during design and testing outside the country so in case safety issues arise later investigators can't get those documents to help build a negligence case against the company?
The only rational response from the EU is to ban EU companies from storing EU data with American companies.
There is already a process now for Schrems III
I am liable if personal data pertaining to EU citizens is disseminated outside of the process set out in EU directives and local laws. This process does cover a local court compelling me or a local company to hand over something, and so in that case I will be in the clear. However, it does not cover the situation where I store my data on AWS and a non-EU court (US) compels Amazon to hand over the data, so in that case I will be liable for massive, potentially company-ending fines.
People have still not adjusted their behavior to account for the changes in laws, but right now it is very inadvisable for any EU entity to store any personal data on any service provided by a non-EU entity.
Think about how many EU jurisdiction entities use AWS. You think none of them are compliant? That's ridiculous.
Since you're the one with the claim - explain exactly which laws and treaties make it illegal to use AWS.
It all works because the public are made to believe these are good because they seem to go after some boogeymen (the evil foreign tech companies and the United-States).
The American CLOUD act grants certain agencies the right to demand data stored in European countries from American companies. This means American companies can either choose to comply with American law, providing said data, or with European law, refusing to provide the data without getting European courts involved. Refusing national security demands from the American government becomes very problematic real fast, especially when gag orders are involved, so companies and American citizens simply cannot be expected to comply with European law.
This choice has the consequence that American companies cannot be trusted to process PII (which is very broad) in any legal sense. Whether or not those companies go evil doesn't matter, the problem lies with the legal protection implemented by the American government.
I'd expect a CLOUD act equivalent from the EU (forcing companies with American offices to hand over the data of American citizens to secret European courts under the guise of national security) will be met with significant protest across the political spectrum. In fact, I would be disappointed if that wasn't protested. Surely Amazon, Microsoft and Google would be pressured to split off or shut down European operations if American citizens would suddenly become at risk of being spied on by foreign governments. If I were an American citizen, I'd certainly want politicians to do something about it!
GP's advice is solid. Avoid US cloud services for handling any private data.
You seem to be very confused about how this process works in reality.
The original post however implied that it was a sinister thing that could just be done on a whim which is objectively not at all how it works in reality.
punnerud is not confused.
Edit for response:
> Which European countries aren’t able to compel a company to help them by providing data in a matter of national security?
EU companies being so compelled by EU governments isn't relevant to the EU; which obviously supports that.
> This idea that all American companies are somehow arm in arm with the USIC is a ridiculous notion that isn’t supported by facts.
That is the purpose of the CLOUD Act. That's what it does. If Microsoft has a server in the EU with EU citizen data on it, the CLOUD Act requires Microsoft to hand over that data in violation of EU law if the US Government requests it. The fact that the US Government has checks and balances of its own is not relevant, the CLOUD Act still compels American companies operating in the EU to violate EU laws.
> There is a reason why most American tech companies in particular make a point to repeatedly and very loudly proclaim [...]
Their proclamations are irrelevant. US law requires them to violate EU law. As long as this is the case, the EU has no rational choice but to ban EU companies from giving EU data to American companies.
This idea that all American companies are somehow arm in arm with the USIC is a ridiculous notion that isn’t supported by facts.
There is a reason why most American tech companies in particular make a point to repeatedly and very loudly proclaim that they will not provide any assistance unless legally forced to do so with a subpoena. They understand that they have a global customer base and that outside the context of those checks and balances that it might be bad for business.
In fact I would even argue that many of those same companies have a far stronger record of collaborating with China than the US. Apple is an example which repeatedly comes to mind here.
European countries can compel me to share data, and in that case I can do it legally. However, under the current law if I share data to the US government without going through the process in my local courts, I am liable for massive fines.
This is even true if I am not the entity sharing the data, but I merely placed it in the care of an US company. The problem is not that American companies are arm in arm with the government, it's that they are incorporated in a jurisdiction where the US courts have power, and because of my local laws, I must consider those courts to be a hostile actor.
>You mean they can go to the DOJ and ask for a subpoena and then go argue to a court that somehow
like - how much more difficult is this than getting a warrant? I mean this doesn't make it seem very difficult https://lorr.com/how-to-subpoena-documents-examples-process/
It's not having a trial or anything to get the data, it is a judge (or in the link, a court clerk?) signing off on the subpoena or am I confused as to how complicated and difficult and time consuming that actually is.
Because getting a warrant is in my experience not like something that takes months and months where people argue and there is a likelihood that even if the warrant is granted that you can appeal to have it overturned, and it seems like a subpoena is no more difficult than getting a warrant and maybe easier.
At any rate, aside from the fact that the American government has often been shown to take more data than needed in their searches of people - that is to say abuse the layers of checks and balances - the European government would of course worry about potential abuses and disallow on the better safe than sorry view of protecting its citizens.
on edit: slackdog made a more relevant point than I did anyway.