The American hidden empire is the heir apparent of the Persian one.
The core problem of post-WWII politics is the centrality of deployed technique (Heidegger). With the ability of the machine to beat man, as shown by DeepBlue vs Kasparov, machines have become the protagonists of post-modern history – the history of the transition from Intelligent Machines (DeepBlue) to Spiritual Machines (the “Technological Singularity”)-. In this sense, present days history has been defined also as Post-History (Kojève, Gehlen).
If machines are the protagonists, the powers who embed intelligent machines have the control on the world (Putin). The “OKO” computer should have guaranteed, via the “second nuclear strike”, the victory of real socialism in WWIII, but “OKO” failed, so that technological sovereignty remained with the US, until China challenged them with its technological giants, like Huawei.
1.The core contradiction of the XXI Century
Thus , ICT, with its trends and its control, has become the most crucial cultural and political issue. Large part of the great questions at stake today are about the control on machines. The future of Mankind depends on the space machines will leave to humans. The conflict rudimentarily described as “Democracy vs. Autocracy” is in reality a transversal dialectics among the fledging Technological Singularity and the different forces protecting identity and difference.
At a geopolitical level, the GAFAM have almost succeeded to take control over the “Hidden Empire”, the “America-World”, making, of it, the main instrument for its control on Mankind (Schmidt & Cohen). On the other side, some stumbling blocks have arisen, which are making the march of the Singularity more difficult. The first of them is China, which has developed its own, parallel, Digital-Military Complex (The “Union of Civil and Military”), similar to the American one, but not identical: the American political system is more widespread, but weaker.
Albeit one could think that two digital-military complexes are worse than only one, in reality, Duality has always been the worst enemy of Singularity (“Advaita”), and, thus, it is a remedy to the ongoing mechanisation. And, in fact, the existence of two competing digital powers gives the other powers of the world the time to reorganise. This is what is happening in Russia and what should happen also in Europe.
2.The role of Europe in the worldwide debate
The role of Europe is ambiguous. Its original idea at the times of Hippocrates, Herodotus and Eschilus, was the one typical of the sedentarized warring tribes (Western Semites and Western Aryans), which challenged the centralized empires governing large alluvional plains (let’s think of Moses vs. Pharaon and of Leonidas vs. Xerxes). However, with the time going on, also those tribes interiorized many ideas coming from Eastern Empires, such as enotheism, divine right, centralisation, what gave rise to decentralised “Western” empires such as the Roman, the Holy and the Ottoman Empires, conciliating centralisation and de-centralisation.
Europe’s post-WWII americanization included also puritan hypocrisy (Nietzsche’s “cant”), whereby exponential centralisation (1% Society, Political Correctness, Globalisation, Intelligence Community, Echelon, Prism), is masked by ideologies which extol opposite principles (Thoreau’s transcendentalism, Whitman’s individualism, the Chicago School’s laissez-faire, Californian Ideology).
Under the influence of US dissidents from “the Web Delusion” (Bill Joy, Julian Assange, Evgeny Morozov), the EU had embraced enthusiastically the idea of compliance with the OECD privacy rules as an evidence of its “superior democracy”, and was surprised (by the Echelon, Wikileaks and Prism cases) to realize that the US were not following their same roadmap , but, on the contrary, under the pretext of Islamic terrorism, and, in reality, for stabilizing their role as the sole superpower, went on creating their own technological empire covering the whole world. Albeit the US did not appear as such at the forefront of this technological invasion, but the GAFAM, created by the DoD’s DARPA, and contiguous to the intelligence community, played the same role, or even a better one, presenting themselves as freedom-loving young start-ups. European States and even the European Union favoured these developments, by allowing the US intelligence community to work freely in Europe, by avoiding any State control on ICT, by creating incredible tax rulings in Luxemburg, Netherlands, Ireland and UK, and by postponing, for a huge amount of time, the adoption and implementation of any measures whatsoever against all that, in spite of laws on national security, secrets protection, intellectual property and privacy, and procedural law.
The GDPR, praised by the official opinion as a masterwork of soft power, was based, in reality, on a deliberate misunderstanding: the idea that the GAFAM, which are a unique creation uniting 1% society and extractive capitalism, theological nihilism and Bal Excelsior rhetorics, hard power and intelligence, propaganda and lobbying, electoral technologies and guerrilla training, may not be effectively governed by one-sided sectoral regulations, such as privacy law, tax law, antitrust law, different according to States and political phases, without facing them in an holistic way, encompassing also international, constitutional, military, criminal, economic and electoral law.
So, each set of law, taken as such, has become a regulatory monstruosity, not achieving in any case the aim to curb abusive practices, which could be pursued only by a unitary strategy, privileging coordination and quality over quantity and bureaucracy. The failure of this policy has become evident over the time,(i) with the refusal, by Obama, to counter the system revealed by Edward Snowden, (ii)with the adoption, by the Congress, of the CLOUD Act, clearly reinstating, in deliberate contrast with the European GDPR, that the US intelligence community has free access to all data stored by the GAFAM even abroad,(iv) with the coverage given by friendly governments, like the Irish one, to illegal practices of the GAFAM, and (v) finally, by the Schrems II Judgement of the ECCJ, which has finally condemned, as illegal, the escapeways found out by the Commission for avoiding to oblige Americans to stop their abuses.
The von der Leyen Commission had the objective to turn these weaknesses of the European system into a force, trying to counter, with a series of programmatic and legal documents, the abuses of the GAFAM, but, in the same time, accommodating very easily to the requirements of the US administration and of the GAFAM themselves. Up to the point that, refusing to comply with the GDPR as interpreted by the EUCJ, the European Institutions (by the ILA with Microsoft), and all Member States (by the inactivity of their respective DPAs) are infringing massively and permanently the laws which they have created, what constitutes the opposite of that Rule of Law which they pretend to utilise just as a pretext for boycotting unsympathetic political leaders (Orbàn, Morawiecki).
The situation has gone so far that, in the last years, the pressure on the governments, at least in some countries, for doing something concrete has become too strong. This is especially true in France, where President Macron is fighting constantly for inheriting the Gaullist tradition, still dominant in the country, which also the Rassemblement National, the second political force of the country, tries to rejuvenate.
As a consequence, Macron has launched the slogan “Souverainisme Européen”, which, as to ICT, sounds like “autonomie stratégique digitale”, which should pave the way to a more general European sovereignty.
Very recently, this slogan has been appropriated by some European Institutions (like Michel, Borrell and Breton), who are moving away from the traditional EU “liberal internationalism” (hiding a substantial subserviency to the US), for arriving at a “realistic” vision of international politics (the “power politics”).
3. Critically discussing EU legislation
This situation has brought about a series of legislative actions, such as Macron’s walking out from the standstill on the web tax, such as the creation of Qwant, JEDI, and, especially, GAIA-X.
As clarified in the interventions of Associazione Culturale Dialexis, albeit these stand-alone initiatives represent a remarkable good news for European sovereignists, they are still too weak for countering the multifaceted hegemony of the US military-digital complex on Europe in the cultural, intelligence, military, political, social and economic fields.
In fact, whilst the “Californian Ideology” represents a consistent social design, starting from secularised millenarism, going on through American Exceptionalism, via the Rostow growth theory and “technological sublime”, the European “regulatory superpower” is dependent on millenarism for its Progress mythology, to American Exceptionalism via the “Allied Model”, to the Rostow development theory via the “multilateralistic” misunderstandings, and, finally, to Technological Sublime through Rifkin’s myth of the Third Industrial Revolution (as reworded by Floridi: “the Fourth Revolution”).
For overcoming these bottlenecks, the EU shall re-interpret its idea of “Trendsetter of Worldwide Debate”, for interconnecting it with the tradition of “Katechon”, as read by St-Paul, by the Ludus de Antichristo,by Soloviov, Dostojevskij, Mc Luhan and Barcellona, i.e. as a philosophical debate about the essence of Modernity.
For keeping abreast of these challenging times, Diàlexis is following intensely the ongoing events at world, European, Italian and Piemontese levels, proposing continuously, to competent authorities and to civil society, new formulas for overcoming the century-long difficulties which block our development and even threaten our survival.
In particular, Diàlexis has expressed its point of view about:
-the refinancing of EIT (European Institute for Technology);
-the creation of Gaia-X (the European Federated Cloud);
-the recommendations of the European Data Protection Board and the Commission Implementing Decisions (trying to comply with the Schrems II judgement of the EUCJ).
PART 1: CONTRIBUTION TO THE GAIA-X SUMMIT
The Gaia-X summit was held virtually on 28-29 October, with the participation of the Ministers Altmaier, Le Maire and Pisano, of Commissioner Breton and of managers of different comnpanies, including Luigi Gubitosi of Telecom Italia, vice President of Confindustria responsible for digitalisation.
GAIA-X :A FIRST STEP TOWARDS EUROPE’s DIGITAL AND STRATEGIC AUTONOMY
Contribution, to the Gaia-X Summit,
by Associazione Culturale Diàlexis
Via B.Galliari 32
The Gaia-X project arises after a lengthy process, which has revealed the weaknesses of the European system in its relationships with the large US platforms and US authorities as concerns access and utilization of data generated by Europeans.
This situation has caused, over the time, a series of problems to the EU, to member States, to European citizens and economy. It is clear today that the only way out is represented by data sovereignty as part of an all-encompassing digital and strategic autonomy. The Echelon, Prism and Schrems cases have shown that the complex legislation generated in Europe over the last two decades of the XXI Century is not sufficient for constraining the digital world within the borders set by digital ethics, national security, rule of law, citizen rights, national interest, privacy and general accepted tax principles.
In order to achieve the above goals, it is necessary that the European Union has, over platforms operating in Europe and data collected there, at least the same wide ranging control, that the US Administration has.For achieving that, the data of Europeans must be stored and processed in Europe by entities which are bound by European legislation and protected by European security laws.
This path will be lengthy and controversial, because Europe has arrived at this point too late, badly equipped from a cultural, technological, political, military, economic and social, point of view. However, without this effort, Europe will disappear from the number of developed countries.
The Institutions have chosen a low-profile approach, which, under several points of view, is too weak, first of all conceptually, since it has not taken note of the real earthquake occurred in the cultural, geopolitical, legal, social and economic paradigms of the XX Century, because of the “warp speed” by which the two digital superpowers are conducting their race.
This requires a long term effort by European intelligencija, politics,, enterprises, civil society, social organisations, for pushing forwards at all levels the battle for Europe’s digitisation and autonomy, to which Associazione Culturale Diàlexis, will be happy to contribute as a cultural organisation and as a publisher.
Since one of the most apparent weaknesses of the digital Europe is the absence of a solid digital industry to support EU policies, the Gaia-X initiative, which aims to create, by an alliance of available forces, the hard core of a truly European digital ecosystem, represents the most serious tentative to create a first European Digital Champion alongside the models of Arianespace, Tornado, Eurofighter, EADS and Galileo.
1.Europe’s difficulties in the Era of Intelligent Machines
For understanding the importance of Gaia-X, it is necessary, according to us, to recall as briefly as possible the historical background of the European quest for digital autonomy, which we trace back to the historical speech of President Macron at the Sorbonne.
The present paper’s starting point is the concrete dialectics between the advancement of the Society of Intelligent Machines and the plans of Europe as a geopolitical subject.
If the guiding phenomenon of XXI Century is ICT, this third decade is characterised by the crucial role of data.
The European Union, trying to update “classical” European ideals, purports to play a leading role (“Trendsetter of the Global Debate”) in a series of areas, and, in particular, the following:
-international democracy, whereby peoples should not be exploited, subjugated or discriminated because of their race, economic or military power, religion, size, ideology…;
-technological humanism, whereby our societies, whilst pursuing economic development, safeguard, and, if possible, enhance the traditional values of mankind;
-world federalism, whereby, in order to reconcile the peoples’ identities and diversities, the world should not be organized alongside a hierarchical relationship among peoples, but, on the contrary, it would strive to reach multifaceted and multicultural forms of governance.
The present state of the world does not correspond to these objectives, since, albeit decreasing, there is still the idea of a “World leadership” , which purports to influence and transform other countries in order to eliminate their diversity. This pretention impedes technological humanism to flourish, ICT being “weaponized” and transformed into the main element of a Society of Mass Surveillance; the potentials of ICT are interpreted in such a way as to subject persons to the impersonal control of States, intelligence, corporations and, especially, algorithms. In this situation, a real world-federalism, as the one hinted by the EU discourse, cannot remain confined to a governance made of laws, of governments, of armies, of money, but shall become a governance of men over machines, alternative to world technocracy.
As a consequence, European Institutions have correctly singled out the control on data as one of their core concerns as a principled supranational organisation. More recently, some national and EU leaders have focused still more this concept as “Europe’s digital and strategical autonomy”, and are striving to achieve the latter by promoting European Champions.
Unfortunately, Europe’s condition is the opposite of autonomy. It is still dependent on ineffective alien political myths, military and economic subordination, political weakness, and, especially, lack of the most essential requisite of autonomy in the XXI century: a digital core, governing knowledge, debate, communication, defence, economy, money…
The major world powers, and, in first instance, China, have programmed in detail the growth of their digital structure, including 6G and quantic technologies, disaster management, national champions, worldwide market strategies and alliances…
The differences among cultural and political systems has only a limited impact on this need for planning technological developments, because technology has a at least partially objective character, so that they, who are not mastering the most recent technologies, cannot protect their values and interests, as it happened to the great empire of China at the time of the Opium Wars.
ICT is stretching its reach well beyond geopolitics, for reaching economy and society. The ability of each country to achieve its targets of social development and economic welfare is directly proportional to the amount of digital technology it is able to master. We can say that ICT is a typical case of “dual use” technology, whereby defence industry is utilised as the main instrument for leveraging State intervention into a free-market economy for achieving a competitive advantage for the nation’s economy and society.
2. From the US Postal Code to the Schrems cases
Like all dual use technologies, computers and the Internet were originally conceived as military in nature, and, with priority, intelligence projects. They have penetrated all branches of economic life, but always keeping their core defense character. Even the practical functioning of Internet was tested thanks to military funds among DARPA-friendly research centers. Its whole development was paid by the DoD, and the core of their functioning is still defense-related.
First of all, the Anti-missile Defense Systems are based on the capability, by Big Data, to forecast, detect, monitor, prevent and counterattack any offensive act of potential enemies If Mass Surveillance is so crucial, it is so primarily because of this tight connection with the needs of Unlimited Warfare. All patterns of present days’ civilization tend to be organized alongside these needs: each citizen is either a tool in the hands of the Apparatus, or an enemy and a target, as it clearly results reading the US Defense doctrine.
Starting from the Macy conferences in the Forties, a utilization of ICT in dual, and, afterwards, civil fields, was already envisaged: mainframes, digital control engines, and machine tools, writing machines, computers, simulators.
Billions of dollars per year have been spent, by agencies such as the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI), to develop, purchase, implement, and operate systems such as Carnivore,ECHELON, and Narus Insight to intercept and analyze the immense amount of data that traverses the Internet and telephone system every day. The Echelon and Prism cases have shown to all world as this surveillance works.
ECHELON, a surveillance program established in 1971 by the United States with the aid of four other signatory states to the UKUSA Security Agreement, also known as “the Five Eyes” has evolved beyond its military and diplomatic origins into “a global system for the interception of private and commercial communications” (mass surveillance and industrial espionage). Britain’s The Guardian newspaper summarized the capabilities of the ECHELON system as follows:”A global network of electronic spy stations that can eavesdrop on telephones, faxes and computers. It can even track bank accounts. This information is stored in Echelon computers, which can keep millions of records on individuals.”
In 2001,the Temporary Committee on the ECHELON Interception System,established by the European Parliament to investigate the surveillance network, recommended that citizens of member States routinely use cryptography in their communications to protect their privacy. In its report, the committee stated categorically that the Echelon network was being used to intercept not only military communications, but also private and business ones. James Bamford, in The Guardian in May 2001, warned that if Echelon were to continue unchecked, it could become a “cyber secret police, without courts, juries, or the right to a defence“.
The birth of the Internet allowed a much more widespread reach of Surveillance Society, leveraged by the commercial utilisation of data and data processing for manipulating consumers’ attitudes. Social networks became the channel whereby web multinationals collect data which they “resell” onto the most different ”markets”.
This has allowed the US platforms to create a brand-new area of business, collecting an enormous amount of money without paying taxes, which allows them to overcome any kind of competitors and to manipulate politics.
3. After September 11
Since the September 11 terrorist attacks, a vast domestic intelligence apparatus has been built in the USA to collect information using NSA, FBI, local police, state homeland security offices and military criminal investigators. This intelligence apparatus collects, analyzes and stores information about millions of (if not all) American citizens, many of whom have not been accused of any wrongdoing. Under the Mail Isolation Control and Tracking Program, the U.S. Postal Service photographs the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces in 2012. The FBI developed the computer programs “Magic Lantern” and CIPAV, which they can remotely install on a computer system, in order to monitor a person’s computer activity. The NSA has been gathering information on financial records, Internet surfing habits, and monitoring e-mails. They have also performed extensive analysis of social networks such as Myspace.
The PRISM special source operation system legally immunized private companies that cooperate voluntarily with U.S. intelligence collection. According to The Register, the FISA Amendments Act of 2008 “specifically authorizes intelligence agencies to monitor the phone, email, and other communications of U.S. citizens for up to a week without obtaining a warrant” when one of the parties is outside the U.S..Foreign subjects do not have any protection at all.
The Communications Assistance for Law Enforcement Act (CALEA) requires that all U.S. telecommunications and Internet service providers modify their networks to allow easy wiretapping of telephone, VoIP, and broadband Internet traffic. In early 2006, USA Today reported that several major telephone companies were providing the telephone call records of U.S. citizens to the National Security Agency (NSA), which is storing them in a large database known as the NSA call database.
Commercial mass surveillance often makes use of copyright laws and “user agreements” to obtain (typically uninformed) ‘consent’ to surveillance from consumers who use their software or other related materials. This allows gathering of information which would be technically illegal if performed by government agencies. This data is then often shared with government agencies – thereby – in practice – defeating the purpose of such privacy protections.
Many websites on the Internet are effectively feeding user information about sites visited by the users, and now also their social connections, to Google:” Google will also know more about the customer – because it benefits the customer to tell Google more about them. The more we know about the customer, the better the quality of searches, the better the quality of the apps”.
Facebook also keeps this information, as it has been ascertained in the ongoing procedures in front of national regulators, of the Court of Justice and of the Commission.
New features like geolocation give an even increased admission of monitoring capabilities to large service providers like Google, where they also are enable to track one’s physical movements while users are using mobile devices. With Google as the advertising provider, it would mean that every mobile operator using their location-based advertising service would be revealing the location of their mobile customers to Google.
The CLOUD Act amends the Stored Communications Act (SCA) of 1986 to allow federal law enforcement to compel U.S.-based technology companies via warrant or subpoena to provide requested data stored on servers regardless of whether the data are stored in the U.S. or on foreign soil.
Early this years, Google has opened its cloud facilities in Salt Lake City, beside theThe Utah Data Center (UDC), also known as the Intelligence Community Comprehensive National Cybersecurity Initiative Data Center, a data storage facility for the United States Intelligence Community that is designed to store data estimated to be on the order of exabytes or larger. Its purpose is to support the Comprehensive National Cybersecurity Initiative (CNCI), though its precise mission is classified. The National Security Agency (NSA) leads operations at the facility as the executive agent for the Director of National Intelligence.
Schmidt and Cohen, two members of Google’s Board, had written in their book “The new digital age” that Google will substitute Lockhead in leading America to the conquest of the world. In fact, also thanks to their important coverages, the US platforms, which have a monopoly position everywhere, exept in China (and perhaps South Korea and Russia), have generated the most important economic sector of the world,n which conditions all other areas of business (finance, communications, culture, commerce, manufacturing, agriculture, tourism, services, healthcare and even politics ; see Taxleaks, Cambridge Analytica).
Thus, as many observers have noted, the Surveillance Capitalism (see Szuszanna Zubov) has reversed all classical notions of political economy (State, monopoly, antitrust, civil freedoms..). This implies that ICT should be dealt with by a specific legislation, what the EU is trying to do more than any other part of the world. Unfortunately, up to now, these efforts have been unsuccessful because the EU are trying to cope with the new phenomenon via “classical” concepts (business ethics, international vs. civil or common law, politics, markets, prices).
This intervention aims at showing the problems arising from old fashioned paradigms and suggesting ways out.
4. The battle around the US CLOUD Act
In considering the impact of the US CLOUD Act, by the “Initial legal assessment of the impact of the US CLOUD Act on the EU legal framework for the protection of personal data and the negotiations of an EU-US Agreement on cross-border access to electronic evidence”, the European Data Protection Board stated that “By choosing to create a legal avenue under US law for US law enforcement authorities to require disclosure of personal data directly from service providers who fall under US jurisdiction, irrespective of where the data is stored, the US Congress enacts into US law a practice of US governmental entities likely to bypass the Mutual legal assistance in criminal matters treaty (MLAT)2 in force between the European Union and the United States of America.….. The US CLOUD Act therefore entails the possibility that such electronic communication or remote computer service providers are compelled to answer a request by US law enforcement authorities for the disclosure of personal data that are subject to the provisions of the GDPR. … The US CLOUD Act thus states an extraterritorial reach of powers under the US Stored Communication Act….” This aspect of the CLOUD Act is not compatible with international law.
Two conflicting legal logics face each other. From one side, we have the “traditional liberal-democratic” legal order, embodied in European Law, which predicates that any kind of interference in the private sphere is prohibited. In exceptional cases, as in the case of criminal procedure or of military intelligence, it must be carried out by the responsible authorities, with formal authorizations and documentation, and for a limited period and scope.
From the other side, we have the American system, as it evolved especially since September 11, that considers that an “unlimited warfare” is under way among, from one side, “Western Civilization”, and, from the other side, “The Rest”; that the US are “the policeman of the world”, and that, therefore, they must use military instruments for preventing and fighting “terrorists”, who may be even American citizens (like the “Taliban Johnny”). Therefore, taking into account the fact that today’s warfare is mainly a digital warfare, US agencies have the right and the duty to interfere with whichever activity is carried out, by anybody, in the world, for detecting, preventing and striking whichever activity which could result dangerous for “Western Civilization”.
Moreover, there is a clear cut geopolitical conflict: the EU does not share all the aspects of US economic warfare, and wants to be free to go on dealing with China, Russia, Iran,…without being subject to retaliation from the US.
The idea that, via a formal bureaucracy of certifications, it would have been possible to skip this substantive contradiction is a childish trick, which the European Court of Justice has had the merit to disclose, but whichrisks to result winning after the two Schrems Cases notwithstanding the recent rhetorics of European Digital and Strategic Autonomy.
Also the fruitless negotiations carried out between the EU and the US since many years have unveiled the European powerlessness:
a.The lack of European sovereign clouds (not belonging to US multinationals);
b.The non compliance, by French authorities, with the so called “French Blocking Statute”, banning the communication abroad of sensitive economic data;
c.Several EU member States never adopted the implementing provisions of Council Regulation n. 2271/96 of 22 November 2996 protecting against the effectsv of extraterritorial application of legislation of a third country.
d.The absence of criminal sanctions in European measures against the breach of confidential obligations;
e.The limitation of the strong penalties for breach of GDPR to the rights of private persons.
Max Schrems had filed a first complaint against Facebook with the Irish Data Protection Commissioner (“DPC”) already in 2013(!) for having stored in his servers a huge amount of files concerning him. The DPC first rejected the complaint as “frivolous and vexatious”(!!). Mr Schrems appealed against the DPC and ultimately won: In that case, C-362/14 Schrems, the CJEU (“Court of Justice of the European Union”, the EU’s supreme court) confirmed his view and ruled that mass surveillance violates European fundamental rights, since it allows massive storage and transfer abroad of European’s data collected without their informed consent. The CJEU struck down the previous “Safe Harbor” system (worked out by Commission and Parliament) that facilitated EU-US data transfers. This system was urgently replaced by the Commission at the last minute with the “Privacy Shield” system in 2016. According to Maximilian Schrems: “Privacy Shield is an updated version of the illegal ‘Safe Harbor’. Nothing in US surveillance law was changed or fixed.”
After the first CJEU decision on “Safe Harbor”, Facebook claimed it would not use “Privacy Shield” but, on the contrary, the so-called “Standard Contractual Clauses” (SCCs). SCCs are a contract between an EU company (here Facebook Ireland) and a non-EU company (here Facebook Inc, in California) in which the foreign company pledges to respect Europeans’ privacy. The law accepts that such contracts sufficiently protect European data when transferred abroad.
Under the EU privacy laws (“GDPR”) and the SCCs, a “data export” to a third country is only legal if the exporting company (in this case Facebook Ireland Ltd) can ensure “adequate protection” in the US. In practice, this turned out to be impossible, because US surveillance laws (such as FISA 702 and EO 12.333) result in the US.
Given the situation above and the ruling of the CJEU in the “Safe Harbor” case, Mr Schrems consequently requested the Irish DPC in 2015 to use Article 4 of the SCCs, which allows the DPC to order Facebook to “suspend” the data transfers in individual cases. While the DPC now agreed with Mr Schrems that US surveillance laws violate EU law, they did not take direct action. Schrems: “We asked for a targeted solution, only for companies that fall under these surveillance laws. The DPC could have issued such a decision within a day.”
The DPC, however, did not follow the request of Mr. Schrems, but instead filed a lawsuit against Facebook and Mr. Schrems before the Irish High Court, with the aim to refer the case back to the CJEU – this time on the validity of the SCCs-. The Irish High Court had complied with the DPC’s request and referred eleven questions to the CJEU, despite the resistance of Mr. Schrems and Facebook (who both opposed the reference for different reasons).
The Court of Justice ruled on July 16, 2020 (Schrems II Case), that the Standard Contractual Clauses and that the transfer of Europeans’ data towards the States, not guaranteeing an adequate protection, is forbidden. So, since almost all providers are US platforms, and the Cloud Act imposes to such platforms to make available the data wherever they are stored, inserting data into the Internet is tantamount as delivering them directly to the US intelligence community.
In practice, this means that all transfers of data via internet providers are forbidden. Now, because European citizens and enterprises have been used since a long time to utilize the Internet, and the legal devices like Safe Harbour, Privacy Shield and Standard Contractual Clauses are not valid, most of the current internet transactions and operations are illegal
According to Mr. Schrems: “In simple terms: EU law requires privacy, while US law requires mass surveillance. The question is, what happens when an EU company follows US rather than EU law?”as Schrems correctly pointed out, the principles of US legislation (mass surveillance os a necessary instrument for maintaining and enlarging the “hidden Empire”, and the opposite principle of the Eu (to forbid mass surveillance in defense of citizens’ rights), are at the opposite extremes. And, being Europe in the worse negotiating condition, it can obtain an ,at least partial, victory, only via a very hard fight.
7.The role of European Champions.
Notwithstanding the fact that, as observed by Commissioner Vestager, the platforms have never made so much money at the expenses of Europeans as during the Covid infection, the official point of view reflected in the most recent papers is still the one of neo-liberal rhetorics, which ignores self evident geopolitical facts, i.e. that ICT has deeply seated geopolitical roots, that have to be unraveled if you want a real digital autonomy. A concept which is implied already in the idea of Strategic Autonomy.
The same idea of European Champions is controversial, so that only a few examples exist as of now. But what else, than American Champions, are Microsoft, Google, Facebook and Amazon? What, if not Chinese Champions, are Baidu, Alibaba, Tencent, Huawei, ZTE? If we want that Europe may compete with USA and China, we must have our champions. They may be slightly different from the American and the Chinese, may be governed by different laws, but they must cover the same markets, obtaining some shares for themselves. It would be impossible that we leave ICT to USA and China and retain just manufacturing or culture, because, within a short period of time, also manufacturing and culture will become simply two branches of the digital business.
Since the digital world is an integrated ecosystem, it is impossible that European champions arise if not in tight connection with the birth of a European digital culture, of a European Army, of a European Military Academy, of a European technology agency, of European platforms, of a Digital Euro…, as clearly identified recently by Josep Borrell.
Therefore, each of the present European initiatives, such as Qwant, JEDI and , now, Gaia-x, must fit within a general plan. As stated by all the promoters, Gaia X has been conceived precisely in this perspective, but we cannot forget the need to complete the landscape of the European Digital Ecosystem, taking into account all the background referred to above.
In fact, Gaia-X will foster the storage in Europe, but will not prevent either the obligation of US companies to share their data with their authorities, nor the Europeans to go on utilizing Google, Facebook and Amazon, nor even European Institutions and Poste Italiane to outsource all of their ICT activities to Microsoft. For avoiding that, it would be necessary that at least new companies arise in Europe for social networks and for secure data transfer, and that they obtain a complete backing fron Euriopean authorities.
Moreover, the European Union must work out a new set of rules governing the different types of access inside European clouds in conformity with GDPR, European criminal and civil procedures, cybersecurity, State secrets, intelligence and counterintelligence, enshrine them into algorithm and guarantee a proper security protection around personnel, servers and workers. Finally, the Union must create a brand-new legislation devoted to the ICT industry, conceived as a public service of strategic interest, whose ownership, control, management and taxation, shall be very tightly controlled like other public services carried out in a shared way with particulars, in health care or in the postal service, in such a way that it shall no more be allowed to subtract, from Europe, via different leaks, human resources, capitals, know-how, data, revenues, jobs and/or taxable income.
This having been said, Gaia-X results to be one of the few European initiatives having a concrete basis and responding to a precise need
Therefore, we cannot but congratulate with the promoters of this initiative and wish to them that it can thrive and can be the starting point of a fledging European Digital Ecosystem, as the one outlined by our book “European Digital Agency”, which proposes a legal framework for fostering and governing such ecosystem.