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The U.S. Supreme Court is facing a landmark ruling: the U.S. government wants it to deeply intervene in European data protection. In February 2018, the court hears a case on whether a US authority may require companies to give them direct access to personal data stored outside the US. A decision is expected by summer 2018. "Direct access by US authorities to personal data from Europe is incompatible with European data protection law," says Bitkom CEO Dr. Bernhard Rohleder.

Bitkom warns US Supreme Court against access to data in Europe

The U.S. Supreme Court is facing a landmark ruling: the U.S. government wants it to deeply intervene in European data protection. In February 2018, the court hears a case on whether a US authority may require companies to give them direct access to personal data stored outside the US. A decision is expected by summer 2018. "Direct access by US authorities to personal data from Europe is incompatible with European data protection law," says Bitkom CEO Dr. Bernhard Rohleder.

"Germany and the EU must maintain and strengthen their sovereignty, particularly with regard to the handling of data. For cooperation with foreign authorities, there are existing legal assistance treaties which should not be circumvented by US authorities demanding direct access to data in Europe. For companies located in the USA and their customers, a change in existing practice would be associated with great legal uncertainty and thus unreasonable. This applies equally to companies that have their global headquarters in the USA and to companies that only have a branch office in the USA. Rohleder: "Companies face an insoluble dilemma: If they follow an order by the US authorities to surrender data stored in Europe, they are breaking European law. If they oppose such an order, they'll break U.S. law."

In the so-called New York Search Warrant Case, the Supreme Court decides whether Microsoft must transfer personal data to U.S. government authorities stored in data centers within the EU. Bitkom and other European digital associations have now warned the court in an Amicus brief of the possible consequences of the ruling if the Supreme Court complies with the US government's request.

The procedure is of enormous importance for internationally active companies, as their organisation extends to both the American and the European legal area. These companies are dependent on the states in which they operate respecting the respective legal situation in the other states. Governments usually agree on mutual legal assistance treaties for official measures across national borders, which regulate how foreign administrative measures are implemented.

The Amicus brief on behalf of Bitkom and 37 other European industry associations to the United States Supreme Court is available for download here.

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