Data transfer to a foreign cloud: the Doctolib decision

CE, ord. ref., March 12, 2021, Doctolib, req. No. 450163 – Interim interim decision

In its Doctolib decision, the Council of State recognizes the incompatibility of American law with the protection of personal data in the European Union

Concerning the United States, the Schrems II judgment (CJEU July 16, 2020, case C-311/18) invalidated the Privacy Shield, equivalent to an adequacy decision, which allowed companies submitting to it to export personal data to the United States. American law authorizes public authorities to access personal data without providing the persons concerned with effective remedies.

The Doctolib company, which offers an online medical appointment service, hosts its data on the servers of a subsidiary of Amazon Web Services (AWS), a company incorporated under US law. As part of the vaccination campaign against covid-19, Doctolib has been appointed by the Ministry of Solidarity and Health to manage the related appointments.

The judge in chambers of the Council of State was seized of a request for suspension of this partnership insofar as it would disregard the general regulation on data protection (EU) 2016/679 of April 27, 2016 (RGPD).

The judge rejects that:

AWS Sarl, a Luxembourg subsidiary of AWS Inc., is certified “health data host” (CSP, art. L. 1111-8). The data is hosted in centers located in France and in Germany and there is no provision in the contract for any transfer of data to the United States for technical reasons. Since AWS Sarl is a subsidiary of a US company, it may be subject to an access request by US public authorities, according to the applicants.

Data in question. – The Council of State notes that “the disputed data includes personal identification data and appointment data but no health data on any medical grounds for eligibility for vaccination”, people simply having to justify their eligibility with a sworn statement.

The duration of the conversation. – The data “ are deleted at the end of a period of three months at the latest from the date of making an appointment, each person concerned having created an account on the platform for the purposes of vaccination can delete it directly online”.

Request for access by US public authorities. – In order to secure their relations, it is stipulated in the contract thatAWS will have to contest “any request that is general or does not comply with European regulations ". This measure is accompanied by a "device for securing data hosted by the company AWS through a encryption procedure based on a trusted third party located in France in order to prevent the reading of the data by third parties”.

> the level of protection thus put in place by the parties “cannot be regarded as manifestly insufficient with regard to the risk of violation of the GDPR”.