European Commission

The European Commission (“Commission”) has published a Recommendation on cybersecurity in the energy sector (“Recommendation”).  The Recommendation builds on recent EU legislation in this area, including the NIS Directive and EU Cybersecurity Act (see our posts here and here).  It sets out guidance to achieve a higher level of cybersecurity taking into account specific characteristics of the energy sector, including the use of legacy technology and interdependent systems across borders.
Continue Reading EU Commission Issues Recommendation on Cybersecurity in the Energy Sector

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

[Update to previous post from August 17, 2018]

On January 23, 2019, the European Commission and Japan mutually recognized each other’s data protection laws as providing an adequate level of protection of personal data (see European Commission press release here). As a result, nearly all personal data can now…
Continue Reading EU-Japan Adopt Mutual Adequacy Decision

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

Last week, the National Telecommunications and Information Administration (“NTIA”) released submissions it had received from the Federal Trade Commission (“FTC”) staff and many other parties on NTIA’s proposed framework for advancing consumer privacy while protecting innovation.  Although NTIA did not request comments on a possible federal privacy bill, most submissions took the opportunity to inform NTIA of what such a federal privacy bill should look like.
Continue Reading NTIA Publishes Stakeholder Comments on Consumer Privacy Proposal

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

Earlier this month, the UK Government published a consultation on plans to implement the EU Directive on security of network and information systems (the “NIS Directive”, otherwise known as the Cybersecurity Directive).  The consultation includes a proposal to fine firms that fail to implement “appropriate and proportionate security measures” up to EUR 20 million or 4% of global turnover (whichever is greater).

We summarise the UK Government’s plans below, including which organisations may be in scope — for example, in the energy, transport and other sectors, as well as online marketplaces, online search engines, and cloud computing service providers — and the proposed security and incident reporting obligations.

Organisations that are interested in responding to the consultation have until September 30, 2017 to do so.  The UK Government will issue a formal response within 10 weeks of this closing date, and publish further security guidance later this year and next.  A further consultation on incident reporting for digital service providers will be run later this year; the Government invites organisations that are interested in taking part to provide appropriate contact details.
Continue Reading UK Government Proposes Cybersecurity Law with Serious Fines

On July 26, 2017, the Court of Justice of the EU (CJEU) published Opinion 1-15 (the “Opinion”) on the proposed agreement between the European Union and Canada on the transfer and processing of passenger name record (“PNR”) data (the “Agreement”).  The Agreement was signed in 2014, but the CJEU was asked to determine whether it was compatible with EU data protection law before it is approved by the European Parliament.

The Opinion concluded that a number of provisions relating to the transfer of PNR data – particularly sensitive data – are incompatible with the EU Data Protection Directive (Directive 95/46) and the fundamental rights to privacy and data protection, and the protection against discrimination, under Articles 7, 8 and 21 of the EU Charter of Fundamental Rights (the “Charter”), meaning the Agreement must be renegotiated before it enters into force.

Notably, the CJEU’s opinion was consistent with its recent judgments concerning data transfers to “third countries” (outside the EEA) in Schrems and Tele2/Watson. 
Continue Reading CJEU: EU-Canada proposed agreement on the transfer of Passenger Name Record data does not conform to EU data protection law standards