In the wake of the Court of Justice of the European Union’s (“ECJ”) Schrems II decision invalidating the EU-U.S. Privacy Shield (“Privacy Shield”) but upholding the validity of standard contractual clauses (“SCCs”), the U.S. government has released a White Paper entitled “Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II.”  The Schrems II ruling requires companies relying on SCCs “to verify, on a case-by-case basis,” whether the level of protections afforded by the SCCs are respected and observed in the recipient country.  According to the cover letter accompanying the White Paper, it “outlines the robust limits and safeguards in the United States pertaining to government access to data” as part of “an effort to assist organizations in assessing whether their transfers offer appropriate data protection in accordance with the ECJ’s ruling.”

The cover letter emphasizes that while the White Paper is intended to help companies make the case that they can transfer personal data from the EU to the United States in compliance with EU law, it does not “eliminate the urgent need for clarity from European authorities or the onerous compliance burdens generated by the Schrems II decision.”  It concludes by citing the importance of the “$7.1 trillion transatlantic economic relationship” and stating that “the Trump Administration is exploring all options at its disposal and remains committed to working with the European Commission to negotiate a solution that satisfies the ECJ’s requirements while protecting the interests of the United States.”
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