European Commission and United States agree in principle on Trans-Atlantic Data Privacy Framework
On March 25th, 2022, the United States and the European Commission have committed to a new Trans-Atlantic Data Privacy Framework that aims at taking the place of the previous Privacy Shield framework.
The White House stated that the Trans-Atlantic Data Privacy Framework “will foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union when it struck down in 2020 the Commission’s adequacy decision underlying the EU-US Privacy Shield framework”.
According to the joint statement of the US and the European Commission, “under the Trans-Atlantic Data Privacy Framework, the United States is to put in place new safeguards to ensure that signals surveillance activities are necessary and proportionate in the pursuit of defined national security objectives, establish a two-level independent redress mechanism with binding authority to direct remedial measures, and enhance rigorous and layered oversight of signals intelligence activities to ensure compliance with limitations on surveillance activities”.
This new Trans-Atlantic Data Privacy Framework has been a strenuous work in the making and reflects more than a year of detailed negotiations between the US and EU led by Secretary of Commerce Gina Raimondo and Commissioner for Justice Didier Reynders.
It is hoped that this new framework will provide a durable basis for the data flows between the EU and the US, and underscores the shared commitment to privacy, data protection, the rule of law, and the collective security.
Like the Privacy Shield before, this new framework will represent a self-certification with the US Department of Commerce. Therefore, it will be crucial for data exporters in the EU to ensure that their data importers are certified under the new framework.
The establishment of a new “Data Protection Review Court” will be the responsible department in cases of the new two-tier redress system that will allow EU citizens to raise complaints in cases of access of their data by US intelligence authorities, aiming at investigating and resolving the complaints.
The US’ commitments will be concluded by an Executive Order, which will form the basis of the adequacy decision by the European Commission to put the new framework in place. While this represents a quicker solution to reach the goal, it also means that Executive Orders can be easily repealed by the next government of the US. Therefore, it remains to be seen if this new framework, so far only agreed upon in principle, will bring the much hoped closure on the topic of trans-Atlantic data flows that is intended to bring.
