Search results for: privacy shield

On March 25, 2022, the EU Commission and US announced that an agreement in principle on a new framework for transatlantic data flows had been reached (see the Commission’s statement here, here, and here, and the US White House’s statement here).  The Commission and the U.S.
Continue Reading EU and US Reach Agreement in Principle on Privacy Shield 2.0

Today, the Court of Justice of the European Union issued a landmark decision striking down the EU-U.S. Privacy Shield—an agreement between EU and U.S. authorities authorizing transfers of EU personal data to the United States—but upholding the validity of standard contractual clauses (“SCCs”), another mechanism that EU-based organizations use to transfer data internationally. Covington represents BSA | The Software Alliance (“BSA”) in the case, and key aspects of BSA’s arguments on the validity of SCCs were reflected in the Court’s decision.
Continue Reading EU’s Highest Court Strikes Down Privacy Shield But Upholds Other Key International Data Transfer Mechanism

On October 23, 2019, the European Commission (“Commission”) published its Report on the third annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) (the Report is accompanied by a Staff Working Document).  The Report “confirms that the U.S. continues to ensure an adequate level of protection for personal data transferred under the Privacy Shield” (see also the Commission’s Press Release).  The Report welcomed a number of improvements following the second annual review, including efforts made by U.S. authorities to monitor compliance with the framework, as well as key appointments that have been made in the last year.  The Commission in particular noted the appointment of Keith Krach to the position of Privacy Shield Ombudsperson on a permanent basis, filling a vacancy that had been noted in previous reviews.  The Report also provided a number of recommendations for further improvement and monitoring.

Recognizing that, in its third year, Privacy Shield has “moved from the inception phase to a more operational phase,” the Report placed particular emphasis on the effectiveness of the “tools, mechanisms and procedures in practice.”  Not only has the number of Privacy Shield certifications exceeded 5,000 companies — eclipsing in three years the number of companies that had registered to the Safe Harbor Framework in its nearly 15 years of existence — the Report also noted that “an increasing number of EU data subjects are making use of their rights under the Privacy Shield and that the relevant redress mechanisms function well.”

As with prior reviews, the Commission sought feedback from trade associations, NGOs, and certified companies, and  addressed the functioning of (i) the framework’s commercial aspects, and (ii) U.S. authorities’ access to personal data.Continue Reading Privacy Shield Third Annual Review

On September 3, 2019, the Federal Trade Commission (“FTC”) announced settlement agreements with five companies for alleged false claims of certification under the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, “Privacy Shield”).  These settlements indicate that the FTC is continuing to actively enforce Privacy Shield commitments, as it has done…
Continue Reading FTC Settles Enforcement Actions Relating to Privacy Shield Certifications

On June 20, 2019, Keith Krach was confirmed by the U.S. Senate to become the Trump administration’s first permanent Privacy Shield Ombudsperson at the State Department.  The role of the Privacy Shield Ombudsperson is to act as an additional redress avenue for all EU data subjects whose data is transferred…
Continue Reading Privacy Shield Ombudsperson Confirmed by the Senate

On January 24, the European Data Protection Board (“EDPB”) adopted a report (“Report”) regarding the second annual review of the EU-U.S. Privacy Shield (“Privacy Shield”).  In a press release accompanying the Report, the EDPB welcomed efforts by EU and U.S. authorities to implement the Privacy Shield,  including in particular the recent appointment of a permanent Ombudsperson.  But the EDPB also noted that certain concerns remain with respect to the implementation of the Privacy Shield.

The EDPB, which is made up of representatives of various European data protection authorities, is established by the GDPR, and advises on the consistent application of data protection rules throughout the EU.  The Report is not binding on the EU or U.S. authorities directly; instead it will serve to guide regulators considering the implementation of the Privacy Shield.  The Report is also likely to influence the EU Commission’s assessment of the Privacy Shield, and to contribute to political pressure in the European Parliament to continue to reform the Shield.    
Continue Reading European Data Protection Board Releases Report on the Privacy Shield

Earlier this week, the European Commission (“Commission”) published its Report on the second annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) (the Report is accompanied by a Staff Working Document).  The Report concludes that the Privacy Shield “continues to ensure an adequate level of protection” for personal data transferred from the EU to the United States.  The Commission also found that the implementation of a number of the recommendations following the first annual review last year improved several aspects of the Privacy Shield, but that certain recommendations still required implementation and/or monitoring.

In another Privacy Shield-related development this week, the International Trade Administration’s Privacy Shield Team announced new guidance on the applicability of the Privacy Shield to the United Kingdom following the UK’s pending withdrawal from the EU. 
Continue Reading Privacy Shield Updates: Second Annual Review and Brexit Guidance

The European Commission has today published its Report on the first annual review of the EU-U.S. Privacy Shield (the Report is accompanied with a Staff Working Document, Infographic, and Q&A).  The Commission concludes that Privacy Shield continues to ensure an adequate level of protection for personal data transferred from the EU to Privacy Shield-certified companies in the United States.  With its conclusion, the Commission also makes a number of recommendations to further improve the Privacy Shield framework.  The Report follows a joint press statement by the U.S. Secretary of Commerce and EU Commissioner Jourová on September 21, 2017, closing the review and reaffirming that the “United States and the European Union share an interest in the [Privacy Shield] Framework’s success and remain committed to continued collaboration to ensure it functions as intended.”

Background

The EU-U.S. Privacy Shield is a framework that effects the lawful transfer of personal data from the EEA to Privacy Shield-certified companies in the U.S.  The Privacy Shield framework was unveiled by the EU and United States on July 12, 2016 and the Privacy Shield framework became operational on August 1, 2016.  To date, there are over 2,400 in companies (including more than 100 EU-based companies) that have certified, with 400 applications under review.

The Privacy Shield provides an annual review and evaluation procedure intended to regularly verify that the findings of the Commission’s adequacy decision are still factually and legally justified.  Under the Privacy Shield, an “Annual Joint Review” is conducted by the U.S. Department of Commerce and the European Commission, with participation by the FTC, EU data protection authorities and representatives of the Article 29 Working Party, and “other departments and agencies involved in the implementation of the Privacy Shield,” including the U.S. Intelligence Community and the Privacy Shield Ombudsperson for matters pertaining to national security.  In preparation for the Review, the Commission also sought feedback from a number of trade associations, NGOs, and certified companies.  (See our earlier posts on the purpose of the first annual review here and here.)
Continue Reading EU Commission Concludes Privacy Shield “Adequate” in first Annual Review

The Article 29 Working Party (“WP29”), a group consisting of representatives from each European data protection authority, the European Data Protection Supervisor, and the European Commission, yesterday issued a press release detailing its recommendations for the first Annual Joint Review of the EU-U.S. Privacy Shield (“Privacy Shield”), which will take…
Continue Reading EU Data Protection Authorities Urge European Commission to Ensure Rigor in First Annual Privacy Shield Review

The first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) is scheduled to occur in September 2017 in Washington, D.C.  The first review is particularly important for the nascent framework, as regulators in both the U.S. and the EU are expected to closely scrutinize the operation of the first year of the Privacy Shield, address concerns that have been raised, and seek to ensure that the Privacy Shield is well positioned to continue operating as a valid legal basis for transfers of personal data from the EU to the U.S.

Under the Privacy Shield, an “Annual Joint Review” is conducted by the U.S. Department of Commerce (“Commerce”) and the European Commission (“Commission”), with participation by the FTC, EU data protection authorities and representatives of the Article 29 Working Party, and “other departments and agencies involved in the implementation of the Privacy Shield,” including the U.S. Intelligence Community and the Privacy Shield Ombudsperson for matters pertaining to national security.  Regulators have also indicated that they plan to solicit and incorporate feedback and comments from other Privacy Shield stakeholders as part of the review process, including from self-certified companies and other interested organizations.

Although this is the first annual review, it is important to note that the Privacy Shield has already been the subject of intense public scrutiny.  The draft text of the framework was released in February, several months prior to the final release in July, and a number of stakeholders took the opportunity to comment on the text, leading to several revisions designed to improve and strengthen the Privacy Shield. 
Continue Reading First Annual Privacy Shield Review Will Comprehensively Assess the Framework