Deirdre O Meara 
Facebook may be forced to suspend data transfers between the EU and the US, according to the Irish Data Protection Commissioner (DPC). The DPC has until May 12th to make a decision on this matter. If enforced, this would mean no more Facebook interaction between people in Ireland and the US, including WhatsApp and Instagram posts. The potential suspension could mark the beginning of the end of the transatlantic internet. It also raises the question of whether this would trigger Meta, Facebook’s parent company, to shut down its European operations in Dublin.
However, commentators have mixed up much of the detail surrounding this subject, and the decision only applies to Facebook. It does not apply to Instagram, WhatsApp, or Meta services in general. While it could set a precedent for other online services, it is a specifically targeted decision aimed only at Facebook. Nevertheless, Facebook remains the tech giant’s biggest earner. If ordered to stop the data transfers, will Meta regard its general services as unviable in the EU? Will it pull out, shutting down its Irish office with its more than 5,000 workers? That seems very unlikely for several reasons.
First, Meta is expected to appeal the decision and possibly seek a stay on the DPC’s order during the appeal. Second, there is likely to be a period of adjustment time for Meta to give effect to the DPC’s decision. This could be 90 days or longer, giving some breathing space for it to consider its options. But the most significant reason why a doomsday scenario is unlikely to happen is that the EU and the US are still expected to ratify a new treaty called the “Data Privacy Framework” that would supersede the DPC’s decision under current law.
The treaty was agreed upon in draft form between EU and US negotiators last year, with a view to implementation this year. While there is still some opposition to it, most observers expect it to take effect in the coming months. If the treaty is not ratified, would Facebook shut down its European operations? If so, would that automatically mean the loss of Instagram and WhatsApp too? This is also unlikely. Whatever about WhatsApp, Instagram is very profitable. To walk away from that service in a market of over 500 million mostly rich people seems improbable.
What seems more likely is that Meta would try to reorganize its Facebook data processing in a way that would appear to satisfy the DPC’s order. There would undoubtedly be challenges to that new structure, but those challenges might take months, maybe even years, to fully play out. In the meantime, Meta would be waiting for a new transatlantic agreement to take shape. Its logic would be that such a treaty is inevitable. After all, the data-transfer ban wouldn’t just hit Facebook; it would affect any data-transfer service that was challenged using the DPC’s Facebook decision as a precedent.
It seems unimaginable that Europe and the US would sit back as a fundamental split in the internet opens up between them. The online divisions between China and the West, and increasingly between India and the West, are already causing severe strains in commerce and relations. To let something similar happen between America and the EU is simply not an option. Of course, that means that either the US or the EU has to back down on their fundamental position – for the EU, its citizens’ rights not to be indiscriminately surveilled by the US; for the US, its right to protect its security through reasonable monitoring of threats. The Data Privacy Framework is supposed to bridge this gap. Everyone knows it doesn’t fully do this. But it should be enough to buy us all a few more years of data transfers between us.
