French Conseil d’Etat about the use of cloud services provided by AWS

March 12, 2021. The Conseil d’Etat – France’s highest administrative judicial body – issued a decision in the COVID-19 vaccination booking platform case. The court ruled that the personal data – managed by Doctolib and hosted by Amazon Web Services – was sufficiently protected because sufficient safeguards, both legal and technical, were provided in the event of a request for access by US authorities.

The case, however, was special. The court’s decision is multi-layered and may also have significant meaning for Polish entities using cloud solutions, in particular from US providers.

The French court indicated that although Doctolib did not transfer personal data to the US (because it concluded an agreement with AWS Sarl in Luxembourg and kept the data on servers in Europe), there is nevertheless a risk of access to the data by US authorities resulting from the fact that AWS Sarl in Luxembourg is a subsidiary of an American company.

However, this court reviewed the safeguards used by AWS Sarl. According to it, it is sufficient for data protection that:

• the contract between Doctolib and AWS Sarl provides for a specific procedure in the event of a request for access to data by a foreign administration. In particular, AWS Sarl guarantees in its contract with Doctolib that it will challenge any general access requests by such authorities;
• the data stored by AWS Sarl is encrypted. The key, in turn, is stored by a trusted third party in France to further prevent the data from being easily read by unwanted parties;
• data is deleted after max. The data is deleted after a maximum of 3 months and in addition each time at the request of the data subjects.

This case proves that safeguards for personal data must always exist, regardless of the circumstances. The legitimate transfer of personal data outside the European Economic Area (e.g. to the USA) is possible. Even if it concerns special categories of data (such as health data). However, it is then necessary to meet the conditions and take an individual approach to the assessment of each transfer.

Our law firm supports you in conducting such an assessment with its expertise and experience. You can learn more about the topic during the Data Centre Trends conference.