Transatlantic Data Transfer: An Update

by Robinson+Cole Data Privacy + Security Insider
Contact

[co-author: Edward Hadcock - Mills & Reeve LLP]

The EU-US Privacy Shield, designed to protect EU citizens’ personal data when it is transferred to US organisations, has now been in place for a couple of months. How is it shaping up?

How we arrived at the Privacy Shield…

Under current EU data protection laws, as well as under the forthcoming General Data Protection Regulation (GDPR), personal data can be sent to entities based outside the EU only if one of the specified protections are in place. One protection mechanism is that the relevant territory guarantees EU residents a level of legal protection that is “essentially equivalent” to that guaranteed by the EU.

The previous EU-US regime (the “Safe Harbor”) was stopped in its tracks by a European court ruling that it was invalid. The court focused on concerns about systematic mass surveillance of private citizens on the part of US government authorities, as revealed by Edward Snowden.

The Privacy Shield agreement was intended to replace and overhaul the Safe Harbour regime for data transfers from the EU to the US.

Data security under the Privacy Shield

The Privacy Shield includes substantial additional protections over the Safe Harbor. Participating companies must:

  • provide detailed information to individuals about their data processing activities, including information about the type of data, purpose of processing, right of access and the choices available to the individual
  • set out the available remedies should a complaint arise
  • offer an independent recourse mechanism to investigate and “expeditiously resolve” individual complaints
  • limit personal data to that which is relevant for the purpose of the processing, reliable for its intended use, accurate, complete and current
  • allow data subjects to opt out if their personal data is to be disclosed to a third party or used for a materially different purpose
  • only allow onward transfers where (1) the transfer is for a limited and specified purpose; (2) it is carried out on the basis of a contract (or comparable arrangement); and (3) that contract must provide the same level of protection.

Take up

There has been some high-profile take-up of the new regime, with companies such as Microsoft, Google and Dropbox signing up. But there has been vocal opposition, particularly from individual activists, including Safe Harbor challenger Max Schrems and Edward Snowden.

EU Data Protection and Privacy regulators group WP29 previously raised concerns around the independence of the redress mechanisms available and also the continuing potential for indiscriminate data collection and surveillance. When the Privacy Shield comes up for its first annual review in the summer of 2017 WP29 will take a long, hard look at the arrangement.

Overall take-up has been cautious. A survey in August suggested that only 34 percent of companies intend to use the framework, others preferring to rely on other data-transfer mechanisms such as standard contractual clauses (IAPP report here).

However, standard contractual clauses (SCCs) are also under challenge through the Irish courts.

Standard Contractual Clauses under threat

The SCC protection for data transfer is being challenged on a similar basis to the Safe Harbor, with a court hearing expected next year. A summary issued by the Irish regulator, the DPC, explains the background to the case and gives a trial date of 7 February 2017. The DPC has several concerns about the SCC mechanism, particularly around the absence of an adequate legal remedy for aggrieved EU citizens whose data has been transferred.

The case has attracted international attention with applications to take part from ten organisations. The Irish court will allow the US Government, BSA Business Software Alliance, Digital Europe and EPIC to contribute to the case. A referral to the European court will probably follow.

The Privacy Shield and other mechanisms for cross-border data transfer are unlikely to see further significant changes this year but are likely to change again in 2017. In the UK, the Brexit vote does not alter the need to comply with EU-based legislation now.  It also seems likely that data protection laws in place at the time the UK formally leaves the EU (likely to include the GDPR) will be retained by the current government.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robinson+Cole Data Privacy + Security Insider | Attorney Advertising

Written by:

Robinson+Cole Data Privacy + Security Insider
Contact
more
less

Robinson+Cole Data Privacy + Security Insider on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.