“EU-US Privacy Shield” instead of “Safe Harbor” for EU-USA data transfer


On February 2, 2016 EU Commission and United States agreed on a new framework for transatlantic data flows: EU-US Privacy Shield.

This new framework shall protect the fundamental rights of Europeans when their data is transferred to the United States and ensure legal certainty for businesses. Wheter or not this is true remains to be seen … see criticism by Max Schrems (Link) or Grünen-EU-Abgeordneten Jan Philipp Albrecht (Twitterlink).

According to the EU Commission the EU-US Privacy Shield reflects the requirements set out by the European Court of Justice in its ruling on 6 October 2015, which declared the old Safe Harbour framework invalid (see GEISTWERT-Blog (Link)). The new arrangement will include the following elements:

  • Strong obligations on companies handling Europeans’ personal data and robust enforcement: U.S. companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guaranteed. The Department of Commerce will whether monitor that companies publish their commitments, which makes them enforceable under U.S. law by the US. Federal Trade Commission. In addition, any company handling human resources data from Europe has to commit to comply with decisions by European DPAs.
  • Clear safeguards and transparency obligations on U.S. government access: For the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms. These exceptions must be used only to the extent necessary and proportionate. The U.S. has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement. To regularly monitor the functioning of the arrangement there will be an annual joint review, which will also include the issue of national security access. The European Commission and the U.S. Department of Commerce will conduct the review and invite national intelligence experts from the U.S. and European Data Protection Authorities to it.
  • Effective protection of EU citizens’ rights with several redress possibilities: Any citizen who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies have deadlines to reply to complaints. European DPAs can refer complaints to the Department of Commerce and the Federal Trade Commission. In addition, Alternative Dispute resolution will be free of charge. For complaints on possible access by national intelligence authorities, a new Ombudsperson will be created.

At the moment it is unclear, which consequences the EU-US Privacy Shield will have on the general requirement of prior-approval by the Austrian Data Protection Authority for International Data Flows.

GEISTWERT will keep you updated …

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