The "Meta-Mega-Fine" and the understandable inconsistency of the personal data guarantors

The "Meta-Mega-Fine" and the understandable inconsistency of the personal data guarantors

The news of the "Meta-Mega-Fine" by over one billion euros imposed by the Irish data protection commissioner on the social networking platform highlights, for the umpteenth time, thefundamental error of the political use of the legislation on the protection of personal data and the inconsistency of the authorities who have the task of applying it.

The fine was not applied for "infringement of privacy" i.e. for some incorrect practice in user profiling or for having collected data on the basis of invalid legal assumptions, but for a structural reason: the data of European citizens end up in the USA and there they are managed on the basis of rules that do not guarantee protection comparable to that provided by the EU because they are more easily available to the government security apparatus.

If, however, this is the reason for the fine, then we're trying to drive a nail in with a screwdriver.

Even in Western democracies, national security is a border in front of which individual rights and agreements between states stop. Proof of this is, on the one hand, that under domestic law state secrecy even blocks judicial investigations and, on the other, even the founding treaty of the EU does not apply to this area, which remains the exclusive jurisdiction of individual members.


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The topic is extraordinarily complex, as this not very recent but still current study by Susan Rose-Ackerman and Benjamin Billa published in 2008 on New York University Journal of International Law and Politics. The fact is however that, in the contrast between politics and law, nothing like the national security embodies the aspiration to the absolute autonomy of the state with respect to anyone. At the same time, without hypocrisy, it must be recognized that the national security exception it's a convenient shortcut to adopt measures without subjecting them to public debate.

Within a democratic system there is at least the possibility of parliamentary control; but, in the international arena, when one is faced with regimes considered inadequately protective, one can only choose not to have anything to do with them or, depending on the balance of forces and needs, to make the best of a bad situation, as in the case of Giulio Regeni.


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Returning to the question of personal data exported to the USA, therefore, it is conceptually wrong to claim that, in the absence of a treaty or other contractual instrument, a sovereign state must guarantee the rights of foreigners at the expense of its own internal security and expect to obtain the result with judicial pressure.

Continue to sanction US companies for collecting personal data in the EU and "exporting" it to America where authorities can analyze them in hopes of a surrender of US national security sovereignty it is a wrong solution from a legal point of view and unrealistic in political terms. Fines and trials have an effect on individual cases and are not the tool to be used to change US policy choices regarding security.

Furthermore, in terms of system, such a choice means bending the right to (however legitimate) needs of a political nature, in blatant violation of the principle of the rule of law and the separation of powers (in addition to triggering a dangerous reciprocity mechanism under which other states will be entitled to legally "aggress" the EU and its members).

So, if you really can't export personal data to the USA, the supervisory authorities should simply ban this practice, but they should ban it for everyone indiscriminatelyinstead of imposing selective sanctions against specific subjects (for example, why Facebook yes and companies that are subject to the Cloud Act no?)

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It is clear that if the guarantors were to adopt such a solution, they would cause consequences of incalculable gravity, which excludes that it can even be taken into consideration. However, the law, at least formally, cannot (or should not) be conditioned by further aspects and must (or should) be applied in a binary way: if the rule is valid, it is valid "regardless". The facts, however, demonstrate that this is not the case, and therefore one wonders what is the point of using a legal rule to solve a political problem of international relations, if not that of having transformed the independent authorities from guardians of the rights of citizens into instruments for the achievement of strategic objectives decided, moreover, not by the individual Member States.

Mind you, it is clear that it is not in the least conceivable to withdraw on the protection of the rights of European citizens in the name of the needs of other countries, whoever they are, including the USA. The point is that the diffusion of American products and services related to information technologies is so extensive and profound in every sphere of public, private and personal activities that it simply makes not feasible, at least in the short term, some "technological autarchy", provided that it is a politically desirable or pragmatically feasible option even in the long term.

In such a context, therefore, the sanction applied to Meta (or to any other subject accused of exporting data to places with "lesser guarantees") appears in all its contradictions. Transmits the unpleasant perception that the rules are applied according to convenience; reiterates the institutional choice to put a price on rights, allowing those who can afford to pay it to do what they want; but most of all it does not explain why it has only now been remembered that there is a law to protect fundamental rights when for years terabytes of data were left to illegally emigrate overseas to end up in the clutches of the "bad guys", without the "good guys" lifting a finger.

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