First announced today by Bloomberg BNA, the U.S. and the European Union reached agreement on a new data transfer framework to replace the invalidated Safe Harbor program. The European Commission press release provides details of this agreement and the new EU-US Privacy Shield:
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. The new arrangement will provide stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities. The new arrangement includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalised access. Europeans will have the possibility to raise any enquiry or complaint in this context with a dedicated new Ombudsperson.
By way of background, the U.S./EU Safe Harbor Program allowed U.S. companies to transfer EU citizens’ data to the U.S. if they self-certified to the U.S. Department of Commerce their compliance with privacy principles similar to those contained in the EU Data Protection Directive. The program was invalidated by the Court of Justice of the European Union based on a claim the U.S. government’s surveillance programs necessarily showed a lack of compliance given the lack of adequate restrictions on this data gathering. The result was widespread confusion among multi-nationals given the invalidation of Safe Harbor affected thousands of U.S. companies certified in the program as well as many more companies relying on the certification to transfer personal data to those companies.
One key takeaway of this agreement is that it continues to place enforcement power with the FTC regarding the “robust obligations on how personal data is processed and individual rights are guaranteed.” Moreover, according to the Press Release, the U.S. “has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement.” And, with regards complaints on possible access by national intelligence authorities, the new Ombudsperson will take charge.
It remains to be seen whether the NSA is on board or whether this agreement was a huge temporary fix simply so that all sides could save face. What is certain, however, is that multi-nationals should have very little comfort that this fix is permanent and will be left unchanged after its inevitable challenge in the court system.