Storing EU data on US servers no longer compliant with GDPR

CJEU rules US cloud servers don’t comply with GDPR and what this means for web analytics

Breaking news: On July 16, 2020, the Court of Justice of the European Union (CJEU) has ruled that any cloud services hosted in the US are incapable of complying with the GDPR and EU privacy laws.

In August 2016, the EU-US Privacy Shield framework came into effect, which “protects the fundamental rights of anyone in the EU whose personal data is transferred to the United States for commercial purposes. It allows the free transfer of data to companies that are certified in the US under the Privacy Shield.” – European Commission website

However after today’s CJEU ruling, this Privacy Shield framework became invalidated due to significant differences between EU and US privacy laws.

European privacy law activist Max Schrems summarises with “The Court clarified for a second time now that there is a clash between EU privacy law and US surveillance law. As the EU will not change its fundamental rights to please the NSA, the only way to overcome this clash is for the US to introduce solid privacy rights for all people – including foreigners. Surveillance reform thereby becomes crucial for the business interests of Silicon Valley. » – noyb website

Today’s ruling also continues to spark concern into the legitimacy of US privacy laws which doesn’t fully protect people’s personal data when hosted on cloud servers based in the US.

Web analytics hosted on US cloud servers don’t comply with GDPR

How will this affect you?

For any business operating a website in the EU or if you have traffic coming to your website from EU visitors, you need to know what data you’re capturing and where this data is being stored.

Google Analytics not GDPR compliant

Source: noyb website

With the CJEU invalidating the Privacy Shield framework, this further challenges the privacy standards of big software corporations like Google and Microsoft as they have servers located in the US while attracting customers from all over the world. 

From our understanding, these corporations will now face ongoing and heavy fines if they continue to process EU data on these US cloud servers.

Can no data be exported outside the EU anymore?

Data can still be exported outside the EU if an adequate level of data protection is guaranteed. This is the case for some trading partners of the EU such as New Zealand, Japan, Switzerland, and Canada. They have been certified by the EU as having a comparable level of privacy protection and therefore demonstrate adequacy at a country level.

Necessary data can still flow to countries like the US too. This is for example the case when someone books a hotel in the US or when sending an email to someone in the US. Backups for disaster recovery and most other reasons don’t qualify as necessary.

In all other cases you can still send data to countries like the US if you get explicit and informed consent from a user. Meaning the user has been informed about all possible risks of sending the data to the US and who can access the data (for example the US government).

How this affects Google Analytics users

If your website is using Google Analytics, you must ask for consent from everyone who visits your website and inform them that the data will be processed in the United States under less strict privacy laws and all associated risks. If you don’t, you could be liable to privacy law infringements and face being fined for not complying with the GDPR.

Consent needs to be:

  • Freely given (the user must have a choice to not give consent and be able to opt out at any time) 
  • Informed (you need to disclose who is processing the data, what data is processed, where the data will be stored and how to opt out) 
  • Specific (consent is only valid for the specific informed purpose) 
  • Unambiguous (for example pre-ticked boxes or similar aren’t allowed)
Web analytics that complies with GDPR

If users don’t give you consent, you are not allowed to track them using Google Analytics or any other US based cloud solution.

For Matomo users

Our cloud servers are based in Germany so these rulings won’t affect you. Matomo On-Premise users choose the location of their data themselves. If the servers are located in the EU nothing changes. If the servers are located outside the EU and the website targets EU users and tracks personal data, then you need to assess whether you are required to ask for tracking consent.

If the data is stored inside the EU you can use Matomo without asking for any consent and you can continue tracking users even if they reject a consent screen which greatly increases the quality of your data.

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