Facebook Walks Back Threat of Leaving Europe Over Data Transfers

A court filing earlier showed Facebook is considering leaving Europe. Now, they are saying they are not really leaving Europe after all.

It was quite the eyebrow raising court document over in Ireland. After the famous Max Schrems court decision that punched a huge hole in the Shield law, Facebook found itself threatening to leave Europe.

The quote itself was pretty clear on Facebook’s intention. The quote reads as follows:

In the event [Facebook] were subject to a complete suspension of the transfer of users’ data to the US, as appear to be what the DPC proposes, it is not clear to [Facebook] how, in those circumstances, it could continue to provide the Facebook and Instagram services in the EU

This is in response to Irish regulators changing data transfer requirements in light of the European top court ruling.

Now, it seems that Facebook is dialing things back a bit after submitting that statement to the courts. In comments made to the media afterwards, Facebook says that it isn’t leaving Europe after all. From TechCrunch:

Facebook’s head of global policy has denied the tech giant could close its service to Europeans if local regulators order it to suspend data transfers to the U.S. following a landmark Court of Justice ruling in July that has cemented the schism between U.S. surveillance laws and EU privacy rights.

“We of course won’t [shut down in Europe] — and the reason we won’t of course is precisely because we want to continue to serve customer and small and medium sized businesses in Europe,” said Facebook VP Nick Clegg during a live-streamed EU policy debate yesterday.

However, he also warned of “profound effects” on scores of digital businesses if a way is not found by lawmakers on both sides of the pond to resolve the legal uncertainty around U.S. data transfers — making a pitch to politicians to come up with a new legal “sticking plaster” for EU-U.S. data transfers now that a flagship arrangement, called Privacy Shield, is dead.

“We have a major issue — which is that for various complex, legal, political and other reasons question marks are being raised about the current legal basis under which data transfers occur. If those legal means of data transfer are removed — not by us, but by regulators — then of course that will have a profound effect on how, not just our services, but countless other companies operate. We’re trying to avoid that.”

The Facebook VP was speaking during an EBS panel debate on rebooting the regional economy “towards a green, digital and resilient union” — which included the EU’s commissioner for the economy, Paolo Gentiloni, and others.

Discussing the Dublin legal filing, Clegg suggested that an overenthusiastic reporter “slightly overwrote” in their interpretation of the document. “We’ve taken legal action in the Dublin courts to — in a sense — to try to send a signal that this is a really big issue for the whole European economy, for all small and large companies that rely on data transfers,” he said.

This raises a lot of questions. If the court document itself says that Facebook doesn’t see a path forward in continuing to offer services if the Irish regulators get what they are asking for, then Facebook says to the press that they are never leaving, it’s actually a problematic contradiction. If Facebook truly has no intention of leaving Europe, then why write that in the court document in the first place? Were those comments simply for the benefit of the court?

Alternatively, this gives plenty of ammunition for the defense in this case. If Facebook has no intention of leaving Europe, then the lawsuit in question risks being simply Facebook saying they don’t like the laws. In that case, it offers a slam dunk case for the defense and Facebook will have to live with more stringent privacy laws.

On the other hand, if Facebook is actually wanting to leave and the comments are simply to avoid a panic in the interim, then we are basically back at square one. That square one being that if Facebook finally has enough operating in Europe because of new privacy laws, then it gives critics plenty of ammunition because Facebook effectively confirms that it can’t operate effectively unless it can use personal information unhindered.

After looking at all the angles here, it’s hard to see how these comments to the media are beneficial. As far as we can tell, it’s either Facebook is trying to muddy the waters on this case or Facebook is basically admitting that they lost their court case. By making these comments, they gave themselves a lose lose situation here as far as we can tell.

Drew Wilson on Twitter: @icecube85 and Facebook.



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