On August 27, 2021, the Swiss Federal Data Protection Authority announced that it recognizes the EU recently approved standard contractual clauses as a transfer mechanism to transfer Swiss personal data to non-adequate countries (see here and here).  However, the standard contractual clauses will need to be adjusted to meet the requirements of the Swiss Ordinance to the Federal Act on Data Protection (“FADP”).

Continue Reading Swiss Federal Data Protection Authority Recognizes the New EU Standard Contractual Clauses as a Lawful Mechanism to Transfer Personal Data Outside of Switzerland

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.”
Continue Reading U.S. Government Issues White Paper on Privacy Safeguards Following Schrems II

The Advocate General’s (“AG”) Opinion in Case C-311/18, Data Protection Commissioner v Facebook Ireland and Maximillian Schrems (“Schrems II”), has been delayed until the 19th December 2019.  (The original publication date was set for the week before, on the 12th December.)

The primary question before the European Court of Justice (“ECJ”),

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 from the EU or Switzerland

On February 12, 2019, the European Data Protection Board (“EDPB”) published two information notes to highlight the impact of a so-called “No-deal Brexit” on data transfers under the EU General Data Protection Regulation (“GDPR”), as well as the impact on organizations that have selected the UK Information Commissioner (“ICO”) as their “lead supervisory authority” for

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

On October 3, 2017, the Irish High Court referred Data Protection Commissioner v Facebook Ireland Limited [2016 No. 4809 P.] to the Court of Justice of the European Union (“CJEU”).  The case, commonly referred to as Schrems II, is based on a complaint by Max Schrems concerning the transfer of personal data by Facebook, from Ireland to the United States, using the EU Standard Contract Clauses (“SCCs”).

Background

The SCCs are a European Commission-approved mechanism to legally effect the transfer of personal data from the EEA to third (non-EEA) countries.  The SCCs provide for a contractual arrangement between a EEA-based data exporter and a non-EEA-based data importer of personal data, under which the data importer agrees to abide by EU privacy standards.
Continue Reading Validity of EU Standard Contractual Clauses Referred to CJEU

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

Nearly 2,000 organizations are now listed as self-certified to the EU-U.S. Privacy Shield on the Department of Commerce’s (“Commerce”) Privacy Shield website.  Given current developments on both sides of the Atlantic, there are likely to be significant Privacy Shield developments in the coming months.

EU Justice Commissioner Věra Jourová recently concluded her visit to the U.S. to meet with Trump Administration officials and others regarding the status of the Privacy Shield.  During her visit, Commissioner Jourová spoke about the importance of the Privacy Shield as a framework with “enormous potential to strengthen the transatlantic economy and reaffirm our shared values.”  She also met with Commerce Secretary Wilbur Ross to discuss the Privacy Shield, and announced that the first annual joint review will occur in September, which she indicated would be “an important milestone where we need to check that everything is in place and working well.”
Continue Reading Privacy Shield Approaches 2,000 Participants; Review Scheduled for September

When China’s new Cybersecurity Law takes effect on June 1, 2017, China will become another important jurisdiction to watch in the international data transfer space.

Before the new Cybersecurity  Law officially was promulgated on November 7, 2016, cross-border data transfer of data from China was largely unregulated by the government.  While many Chinese laws and regulations governed the collection, use and storage (including localization) of data, no binding laws or regulations contained generally applicable legal requirements or constraints on the transfer of data across Chinese borders.
Continue Reading Cross-Border Data Transfer: A China Perspective