Tag: EU – US Privacy Shield

EU Commission announces formal adoption of the EU-U.S. Privacy Shield

13. July 2016

The EU Commission announced yesterday the formal adoption of the EU-U.S. Privacy Shield. Both, the EU Commission Vice-President, Andrus Ansip, and the EU Commissioner Vera Jourová highlighted the positive impact of the Privacy Shield not only for businesses, but especially for EU citizens, whose right to data protection will be enforced and several mechanisms will implemented in order to safeguard their rights.

The main aspects of the final draft of the EU-U.S. Privacy Shield are:

  • U.S. companies handling EU personal data will be subject to stricter obligations. For instance, the American Department of Commerce will review regularly that the participating companies comply in practice with the commitments of the Privacy Shield. In case of incompliance, the company will face not only fines, but will be also removed from the list.
  • The U.S. has ensured that bulk collection of EU citizens’ data will be carried out only if certain conditions are met and it will be as targeted and focused as possible. Also, a redress mechanism will be available for EU citizens to solve this kind of issues.
  • Individual rights will be effectively protected through the implementation of dispute resolution mechanisms, which will be affordable and accessible for EU citizens. In case that the dispute is not resolved, an arbitration mechanism will be also available. If the dispute refers to U.S. national security Authorities, an independent Ombudsperson will handle the issue.
  • The Privacy Shield will be subject to an annual review by the EU Commission and the U.S. Department of Commerce in order to monitor its functioning.

Next steps

The Privacy Shield constitutes an “adequacy decision”. This decision has been notified to the EU Member States by the EU Commission and will enter into force immediately. Additionally, it will also be published on the U.S. Official Journal.

Starting August 1st, the U.S. Department of Commerce will start processing membership requests. This means that companies that wish to certify and become members of the EU-U.S. Privacy Shield will have to review and if appropriate update their privacy programs.

Furthermore, the EU Commission will publish a guidance in order to inform EU citizens about the dispute resolution mechanisms available under the Privacy Shield.

What happens with the GDPR?

The GDPR lays down stricter requirements to carry out international data transfers than those of the Privacy Shield. As the GDPR will enter into force in two years, U.S. companies will have to be compliant also with the requirements of the GDPR.

However, this situation has been already addressed in two directions: on the one hand, the Privacy Shield will be subject to an annual review, as mentioned above; and on the other hand, the Privacy Shield states that its scope of application refers to data transfers and processing of personal data by U.S. companies as far as the processing does not fall under the scope of EU legislation.

The EU-U.S. Privacy Shield has been approved

11. July 2016

On the 8th July 2016, the Vice-President of the EU Commission, Andrus Ansip, and the Commissioner Vera Jourová announced in a joint statement that the EU Member States have approved the updated draft of the EU-U.S. Privacy Shield. However, Austria, Bulgaria, Croatia, and Slovenia abstained from voting.

The statement remarks that the Privacy Shield will ensure a high data protection level for EU citizens, because it imposes stronger obligations for U.S. companies. Specially regarding the bulk collection of personal data from EU citizens by American authorities.

The formal adoption of the Privacy Shield is expected this week.

Although the EU-U.S. Privacy Shield has been approved, the legality of the agreement could be challenged, as occurred with the former Safe Harbor Framework.

EU-U.S. Privacy Shield: approval expected within this week

4. July 2016

The EU Commission and American negotiators reached last week an agreement regarding the final draft of the EU-U.S. Privacy Shield. Now, the EU Commission has sent this draft to the Article 31 WP, who is expected to issue an opinion by tomorrow. If so, the EU-U.S. Privacy Shield will be implemented by the end of this week. Also, the final draft has been sent to the EU Parliament. The EU Parliament can issue an opinion, but cannot block its approval.

The Article 31 WP will meet today to review the text. Normally, the committee has two weeks to issue an opinion but the EU Commission expects an approval already this week.

Agreement by EU and U.S. negotiators on final changes on the Privacy Shield

28. June 2016

After several months of negotiations regarding the legitimating instruments to carry out international data transfers, EU and U.S. negotiators agreed last week on the final changes of the proposed EU-U.S. Privacy Shield.

The initial draft of the EU-U.S. Privacy Shield was criticized by several European Institutions such as the Article 29 WP, the EDPS, Article 31 WP and the UK Data Protection Authority (ICO) for not offering enough safeguards for EU citizens regarding the protection of their personal data upon data transfers to the U.S.

The main critic of the EU-U.S. Privacy Shield was focused on the independency of the ombudsman and on the massive surveillance activities from American Authorities. Additionally, a follow up control mechanism regarding compliance with the EU-U.S. Privacy Shield was required by European negotiators.

EU and U.S. negotiators have agreed to improve the above mentioned aspects in order to ensure more guarantees on the protection of EU citizens’ personal data:

  • The White House committed in writing to collect EU personal data only under certain circumstances and for targeted purposes.
  • Data retention periods have been defined concretely: organizations will be obliged to delete personal data that is no longer needed for the purposes for which it was originally collected.
  • The proposal will include a specification that the ombudsman will be an independent institution.

As a next step, the Article 31 WP, made up of representatives of the EU Member States, will decide if the amended text complies with European Data Protection legislation. Both, the EU Commission and the U.S. Government hope that the EU-U.S. Privacy Shield enters into force by August 2016.

Implications for the UK

After UK citizens have voted to leave the EU, a two-year-negotiation between the EU and the UK Government will take place. During this time, UK organizations will have to comply with European legislation, also regarding international data transfers. When the UK ceases to be an EU Member State, it will be considered as being a third country in terms of international data transfers and will have to ensure enough safeguards regarding the protection of personal data.

German DPA fines three companies for illegal data transfer to the U.S.

7. June 2016

The Data Protection Authority of Hamburg just announced in a press statement that it checked the data transfers of 35 international organizations that are based in Hamburg.

After the judgment declaring the former Safe Harbor Framework by the European Commission invalid  in October 2015 by the European Court of Justice, the DPA contacted organizations in Hamburg operating also in the U.S. and reviewed the transfer of personal data to the U.S. in order to determine whether other instruments are used than the Safe Harbor Framework. According to the mentioned press statement, the review has revelied that the majority of the companies had changed the legal basis of their transfers of data by implementing standard contractual clauses (SCC).

However, according to a report by Spiegel Online, there were three companies that did not change their legal basis for data transfer. Therefore, the three companies were fined:

Adobe (8.000 Euros), Punica (9.000 Euros) and Unilever (11.000 Euros)

As all three companies have changed the legal basis for data transfering during the proceeding, the DPA imposed a fine that was significantly smaller than the maximum of 300.000 Euros.

 

 

European Data Protection Supervisor issues opinion on EU-U.S. Privacy Shield

1. June 2016

The European Data Protection Supervisor (EDPS), Giovanni Buttarelli, issued this week his opinion on the EU-U.S. Privacy Shield. The EDPS is an independent EU institution created in 2004 that assesses EU institutions on policies and legislation related to privacy and data protection and cooperates with authorities in these matters.

The EDPS emphasized on the following key aspects related to the EU-U.S. Privacy Shield:

  • The current draft is not solid enough and improvements should be made in order to withstand scrutiny before the ECJ.
  • The Privacy Shield should offer a long-term solution regarding international data transfers to the U.S.
  • The protection provided by the Privacy Shield should ensure the rights to redress, transparency, data privacy and oversight.
  • It should also prevent from indiscriminate surveillance by American authorities.
  • The draft should comply with the GDPR, including international data transfers.
  • International companies should be aware of and comply with their obligations on privacy and data protection issues.

To sum up, the Privacy Shield should offer an equivalent data protection level to that existing in the EU.

Category: EU · General
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Renegotiation of the Privacy Shield

The European Parliament approved a resolution concerning the European Commission reopening negotiations with US authorities on the EU-US Privacy Shield last week. Furthermore, the resolution intends to implement the recommendations of the Article 29 Working Party on the draft Privacy Shield adequacy decision.

The resolution that was approved by the majority of members of the European Parliament says that the executive still needs to improve the data transfer deal allowing US authorities to collect EU citizens’ data.

Although the Parliament’s opinion is not binding, it builds up pressure on the Commission in order to increase the level of data protection in the much discussed agreement.

After the Safe Harbour agreement was declared invalid last October due to the fact that it did not protect European citizens’ data once they were sent to the USA, the executive is now behind schedule as EU Justice Commissioner Vera Jourova and Digital Commissioner Günther Oettinger initially stated that the new agreement should go into effect by the end of June. However, in order for that to happen a group of diplomats from European member states have to sign their approval first. Nevertheless, although the diplomats were expected to vote on the Privacy Shield last week, they delayed their final decision as they scheduled new meetings up until the end of June.

Generally, the Commission has already finished the negotiations concerning the Privacy Shield with US authorities, though clarification on some points is needed. Commission spokesman Christian Wigand described the clarifications as realistic changes and not a drastic renegotiation of the agreement.

However, the Parliament’s resolution intends to take criticism from national privacy protectors of the European member states “fully” into account.

Category: EU · Safe Harbor · USA
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Update EU-U.S. Privacy Shield: Article 31 needs more time to consider the implications of the proposal

23. May 2016

On the 19th May, the Article 31 Committee, made up of representatives of the EU Member States, met in order to discuss the implications of the proposed draft of the EU-U.S. Privacy Shield. The Article 31 was created in order to reach decisions that require the approval of the EU Member States according to the Data Protection Directive 95/46/EC. This is the case, for example of the adoption of adequacy decisions, such as Safe Harbor in the past or the EU-U.S. Privacy Shield currently.

Article 31 concluded that it needed more time to reach a decision about the proposal. Moreover, a source of the Commission affirmed that further meetings in May and early June will take place. Also, the recommendations of the Article 29 WP are being taken into consideration before reaching a decision.

The decision of the Article 31 is expected by the end of June. The EU-U.S. Privacy Shield can be only adopted if a qualified majority of 16 Member States representing 65 percent of the EU population votes for the adoption of the Privacy Shield.

Until a decision is reached, Standard Contractual Clauses and Binding Corporate Rules can still be used to carry out international data transfers on a legal basis.

UK Information Commissioner gives opinion on EU-U.S. Privacy Shield

25. April 2016

The UK Information Commissioner, Christopher Graham, issued last week his opinion about the EU-U.S. Privacy Shield. He criticized the reluctance of the U.S. authorities to make amendments on the agreement. On the 13th April, the Article 29WP also called American negotiators for clarification of some aspects of the Privacy Shield such as data transfers, the institution of the ombudsman or the justification for the collection of personal data, etc. Graham also remarked that the ECJ will also ask for clarification regarding these points and invited both American and European authorities to provide the required clarification.

On the other side, Stefan Selig, U.S. undersecretary of commerce for international trade, affirmed that the opinion issued by the EU Data Protection Authorities will be revised carefully. However, he believes that the current draft of the EU-U.S. Privacy Shield achieves a balance of interests for both parties.

Graham also remarks the importance of reaching an agreement regarding international data transfers, so that the English DPA (ICO) can focus on providing support to organizations regarding the implementation of the GDPR that will be effective on the first half of 2018.

Article 29 WP releases its opinion on the EU-U.S. Privacy Shield

14. April 2016

The Article 29 WP, represented by the DPAs from the EU Member States, issued yesterday its opinion on the proposed draft of the EU-U.S. Privacy Shield.

Background

Under the Safe Harbor framework, personal data transfers from the EU to the U.S. have been carried out since the year 2000. In October 6th, 2015, the ECJ declared this framework invalid, as it considered that it did not ensure enough safeguards regarding the protection of personal data from EU citizens. In February 2016, the EU Commission and several American Authorities drafted the new framework that shall replace the Safe Harbor Agreement. The draft has been now analyzed by the EU DPAs, who remark the necessity to clear and define some concepts.

Critical aspects of the EU-U.S. Privacy Shield identified by the Article 29 WP

The Article 29 WP does not believe that, in general terms, the current draft of the Privacy Shield ensures a level of data protection equivalent to that in the EU. The most relevant aspects of the published document could be summarized as follows:

  • Data retention periods are not defined in any of the principles of the framework. This means that companies could keep personal data even if they do not renew their Privacy Shield membership. This contravenes the principle of data retention limitation according to EU data protection legislation.
  • The scope and definition of the purpose limitation concept is described under the notice, the choice and the data integrity and purpose limitation principles. However, in each of these principles is the purpose limitation principle differently defined, what leads to an inconsistent definition of this concept.
  • Also the concept of onward transfers has been critically analyzed by the Article 29 WP. Under this principle, Privacy Shield members may legitimately carry out data transfers to third parties. This involves the risk that the recipient of the data does not ensure the same level of data protection as stipulated according to the EU data protection legislation.
  • The redress mechanism available for EU data subjects may be too complex for the data subjects themselves. The Article WP29 recommends that the local DPAs represent the data subjects or act as intermediaries so that they can exercise their rights in Europe.
  • Finally, the Privacy Shield includes certain guarantees regarding the surveillance activities by U.S. authorities. However, the massive collection of personal data from EU citizens is not fully excluded. Regarding this, the institution of the Ombudsman has been created. According to the Article 29 WP, its functions and legitimation are not sufficiently defined.

The Working Party has requested the EU Commission to clarify these aspects and adopt the corresponding solutions, so that the Privacy Shield ensures an equivalent level of data protection to that in the EU. Particularly, it has recommended to introduce a glossary of terms in the “Privacy Shield FAQ” and a review of the Privacy Shield draft after the GDPR becomes effective, in order to ensure that the Privacy Shield reflects the level of protection reached by the GDPR.

What next?

Since the opinion of the Article 29 WP is not binding, the EU Commission could proceed further with the approval of the EU-U.S. Privacy Shield. However, it will consult a Committee of representatives of the EU Member States before issuing its final decision. Until a final decision is reached, the mechanisms to carry out international data transfers are limited to Binding Corporate Rules and Standard Contractual Clauses.

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