United States: Safe Harbor Part Deux: The Privacy Shield

Last Updated: February 8 2016
Article by Tanya Forsheit

This week began like many. An arbitrary deadline came and went – this one, January 31, 2016, was set by the Article 29 Working Party for European and United States regulators to address the void created by the invalidation of the Safe Harbor Framework for EU-U.S. data transfers in the Schrems decision back in October. Many of us had given up hope long ago of any meaningful accord, given the short period of time. Business continued as usual. But speculation ran rampant. Then, as those of us on the west coast had our first cup of coffee Tuesday, we began to receive the barrage of emails and social media notifications from the usual suspects indicating that something had changed. Was there a deal? A Safe Harbor 2? What exactly was it?

Just before 7:30 a.m. Pacific time, the news broke that negotiators had reached a "political agreement" on a new data transfer framework. A few minutes later, EU Commission Vice President for the Digital Single Market Andrus Ansip and Commissioner Vera Jourová held a press conference to announce a new framework, the "EU-U.S. Privacy Shield." According to Commissioner Jourová:

"For the first time ever, the United States has given the EU binding assurances that the access of public authorities for national security purposes will be subject to clear limitations, safeguards and oversight mechanisms. Also for the first time, EU citizens will benefit from redress mechanisms in this area. In the context of the negotiations for this agreement, the US has assured that it does not conduct mass or indiscriminate surveillance of Europeans. We have established an annual joint review in order to closely monitor the implementation of these commitments."

The press release issued by the EU Commission is here. Many questions remain unanswered, but following is what we currently know about the Shield:

What We Know

As articulated by the Commission, the new arrangement, which has yet to be set forth in writing, will impose stronger obligations on U.S. companies to protect the personal data of Europeans and require stronger monitoring and enforcement to be carried out by the Commerce Department (DOC) and the Federal Trade Commission (FTC), which will include increased cooperation with European Data Protection Authorities (DPAs). It also will include commitments by the U.S. that surveillance activities with respect to personal data transferred from the EU "will be subject to clear conditions, limitations and oversight."

U.S. companies that want to import personal data from the EU will be required to commit to "robust obligations on how personal data is processed and individual rights are guaranteed." Companies handling human resources data from Europe will be required to comply with decisions by European DPAs.

There will be several redress options for European data subjects, and companies will be under deadlines to respond to complaints. DPAs will be able to refer complaints to the DOC and the FTC. Further, EU data subjects will be able to submit complaints regarding surveillance to a new dedicated Ombudsperson.

As mentioned by Commissioner Jourová, there will be an annual joint review by the EU Commission and the DOC, which will also include the issue of national security access, and there will be participation from national intelligence experts from the U.S. and EU DPAs.

Statement of the Article 29 Working Party

Today, February 3, the Article 29 Working Party issued a statement. The Working Party welcomed the introduction of the Shield as meeting the deadline set by the Working Party, but indicated that it will need to review the relevant documents "to assess whether it can answer the wider concerns raised by the Schrems judgment as it regards international transfers of personal data." It called for the EU Commission to produce the relevant documents by the end of February.

Notably, the Working Party expressed ongoing concern regarding the current U.S. legal framework in regards to the four essential guarantees under EU jurisprudence for surveillance activities: specifically, that there must be (1) clear, precise and accessible rules for processing of personal data; (2) a demonstration of necessity and proportionality with regard to the legitimate objectives pursued; (3) an independent, effective and impartial oversight mechanism; and (4) effective remedies available to the individual.

The Working Party makes clear in its statement that it will need to consider whether the Shield will alleviate these concerns. It will also analyze to what extent the Shield provides legal certainty for the other transfer tools (such as Standard Contractual Clauses (SCCs) and Binding Corporate Rules (BCRs)). Further, the Working Party will examine whether the Shield "respect[s] the powers of data protection authorities as laid down in Article 28 of Directive 95/46/EC."

Also of significance is the Working Party's highlighting of the possibility of imminent enforcement by DPAs despite the announcement of the Shield. The statement notes that "since the Schrems judgment, transfers to the U.S. cannot take place on the basis of the invalidated Safe Harbour decision" and provides that the DPAs will deal with related cases and complaints on a case-by-case basis.

Once the Working Party receives the documents spelling out the details of the Shield, it will conduct an assessment at "an extraordinary plenary meeting that will be organized in the coming weeks." After that, the Working Party will consider whether SCCs and BCRs can still be used. However, importantly, those transfer mechanisms remain viable in the interim.

What Happens Next

The announcement of the Shield is just the beginning of the story. As a procedural matter, the College of Commissioners has directed Vice President Ansip and Commissioner Jourová to prepare a draft adequacy decision in the coming weeks, which could then be adopted by the College after it obtains the advice of the Working Party and after consulting a committee composed of representatives of the EU Member States.

Not surprisingly, the Shield is already the subject of criticism from certain European officials and privacy advocates on both sides of the Atlantic. And even if the Shield is adopted, it will likely be the subject of court challenges for many years to come.

U.S. companies should also keep in mind that the Shield only addresses data transfers and is not the only piece of the European privacy legal landscape in flux. The EU General Data Protection Regulation (GDPR) is expected to be enacted this year and take effect in 2018, with tremendous ramifications and changes for U.S. companies handling the personal data of EU data subjects, even in the absence of data transfers. We will continue to monitor developments closely and report them here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.