EDPB shares concerns over UK-US data deal in light of future UK adequacy decision
On June 17th, 2020, the European Data Protection Board (EDPB) has written an open letter to the Members of the European Parliament over its concerns regarding the Agreement between the United Kingdom (UK) and the USA on Access to Electronic Data for the Purpose of Countering Serious Crime in relation to a future UK adequacy decision after the country’s exit out of the European Union.
In its letter, the EDPB states that it is concerned with the applicability of the safeguards in the Brexit withdrawal agreement with the EU once the UK leaves the Union at the beginning of 2021. The Agreement between the UK and the US allows for easy data access in the case of the prosecution of serious crimes, and facilitates an access request to be made to UK authorities and businesses under the US Cloud Act, for which it is unsure if the safeguards agreed upon between the EU and the UK apply.
The EDPB also stresses that, in the light of a potential data sharing agreement between the EU and the US, it is mandatory that the European safeguards in such an agreement “must prevail over US domestic laws” in order to be “fully compatible with European laws”.
Furthermore, the letter also states that “it is also essential that the safeguards include a mandatory prior judicial authorisation as an essential guarantee for access to metadata and content data”. In its preliminary assessment, the EDPB could not distinguish such a provision in the UK-US Agreement.
While right now the EDPB can only make a preliminary assessment of the situation based on the current elements at its disposal, it states clearly that the Agreement between the UK and the US will have to be considered in any relevant adequacy decision in the future. This is especially important as there is a “requirement to ensure continuity of protection in cases of onwards transfers from the UK to another third country”.
In any case, the EDPB intends to release its own opinion on the matter if the European Commission should release a draft of the adequacy decision for the UK.
