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Privacy Insider: August 17, 2021

  • by Angelique Carson
  • last updated August 17, 2021
  • 5 min read
Privacy Insider: August 17, 2021

Well, he's back. The man many companies love to hate. Max Schrems. 

This time, Schrems is making news because his advocacy group, none of your business (nyob), filed 422 complaints with 10 EU data protection authorities over websites' misleading cookie banners. Earlier this year, nyob sent warning letters to the websites, alleging they were using tricky tactics to get users to agree to their cookie policies. 

While 42% of the websites made changes, some didn't go far enough for nyob. It filed formal complaints against 82% of them, alleging violations of the EU Data Protection Regulation's provisions on cookies.

If you don't already know Schrems, he's someone you want on your radar. Because, while businesses have long despised him — or at least the money and work hours his activism incites —  he's got a pretty good track record on wins. If I were one of the websites now facing DPA scrutiny, I'd be worried. 

When Schrems started wreaking havoc in the data privacy space, he was a sneaker-wearing law student in Austria. As the story goes, during a semester abroad in California, he heard a guest lecturer from Facebook discussing the company's approach to European privacy law. It piqued his interest, and he decided to submit a data subject access request to Facebook.

Dissatisfied with the company's response (Schrems says they "burned a PDF file on a CD after all and sent it off to me"), Schrems and his team began investigating. And that was the beginning of the end of Safe Harbor, a legal tool essential to companies doing cross-transfers. It's a long story and a lot of court documents from there, but in the end, Schrems' allegations of privacy violations at Facebook went all the way to Europe's High Court. Schrems said Safe Harbor, predicated on mutual assurances in U.S. and EU law, was illegal. He said Facebook collected data that U.S. law enforcement ostensibly could access using national security law loopholes, and if the U.S. government could surveil data Facebook collects, Safe Harbor doesn't square with EU citizens' rights by the GDPR. And the court agreed. One gavel strike in October 2015 invalidated Safe Harbor forever.

The EU and U.S. tried again with a replacement mechanism called Privacy Shield. But in what's called the "Schrems II," case, the grown-up Schrems struck again, alleging that agreement was also illegal. In 2020, the court agreed. Privacy Shield died. Schrems was 2-0. 

These are simplified explanations of a very nuanced legal procedure, but you get the point. Schrems ... wins. 

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I feel for my colleagues on the business side of things for the legal uncertainty, and wildly late nights Schrems seems to bring with him wherever he goes. There's been a lot of scrambling after these rulings. But as a pro-privacy journalist working for a company whose mission is to see every person granted their privacy rights, Schrems' work has been admirable. 

That's why this news that he's put 422 companies on notice feels significant. The writing has been on the regulatory walls for a long time now: Improve your cookie practices, or you're stepping outside the lines. But nothing scares industry like the threat of losing money because of a regulatory fine and the complementary PR nightmare. 

These 422 complaints don't mean anything yet. But, given Schrems' track record, it's probably time to pay attention.

This week, we're going to take a break from Twitter Spaces which I have loved doing with y'all because your girl is taking a couple days of vacation. Tomorrow, at this time, I'll be cruising up the highway to my hometown in Maine. Miles, my puppy dog, will serve as co-pilot.  Enjoy reading, and I'll see you next week! 


Schrems and company file 422 official complaints on websites’ cookie practices

Privacy activist Max Schrems and his group, nyob, have filed 422 complaints with data protection authorities over alleged EU General Data Protection violations. Earlier this year, nyob sent warning letters to 516 websites across Europe over their use of “deceptive practices and dark patterns to trick visitors into agreeing to cookies,” Enterprise Times reports. The group warned the websites to fix the problem or face official complaints. While 42% made changes, nyob filed complaints against 82% of them. Schrems said many of the websites “only stopped the most problematic practices.” 
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About The Author · Angelique Carson

Angelique Carson is the Director of Content at Osano, a B-corp privacy platform that makes compliance with privacy laws easy for companies of all sizes. She is a professional writer and editor who has worked in journalism and publishing for more than ten years. Previously Angelique was an editor at the International Association of Privacy Professionals and the host of The Privacy Advisor Podcast. She lives in Washington, D.C., with her puppy Miles.