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Financial Services Law Insights and Observations

EU and U.S. agree in principle on new Trans-Atlantic Data Privacy Framework

Privacy/Cyber Risk & Data Security Consumer Protection EU EU-US Privacy Shield GDPR Of Interest to Non-US Persons

Privacy, Cyber Risk & Data Security

On March 25, the U.S. and the European Commission announced their agreement in principle on a new Trans-Atlantic Data Privacy Framework (Framework) to foster cross-border transfers of personal data from the EU to the U.S. (See also White House and European Commission fact sheets here and here.) Under the Framework, the U.S. has committed to implementing reforms and safeguards to “strengthen the privacy and civil liberties protections applicable to U.S. signals intelligence activities.” The announcement follows negotiations that began after the Court of Justice of the EU (CJEU) issued an opinion in the Schrems II case (Case C-311/18) in July 2020, holding that the EU-U.S. Privacy Shield did not satisfy EU legal requirements.

As previously covered by InfoBytes, the CJEU’s ruling (which could not be appealed) concluded that the Standard Contractual Clauses issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. However, the Court invalidated the EU-U.S. Privacy Shield. In annulling the EU-U.S. Privacy Shield, the CJEU determined that because the requirements of U.S. national security, public interest, and law enforcement have “primacy” over the data protection principles of the EU-U.S. Privacy Shield, the data transferred under the EU-U.S. Privacy Shield would not be subject to the same level of protections prescribed by the GDPR. Specifically, the CJEU held that the surveillance programs used by U.S. authorities are not proportionally equivalent to those allowed under the EU law because they are not “limited to what is strictly necessary,” nor, under certain surveillance programs, does the U.S. “grant data subjects actionable rights before the courts against the U.S. authorities.” 

According to the factsheet released by the White House, the U.S. has made “unprecedented commitments” that build on the safeguards that were in place under the annulled EU-U.S. Privacy Shield with the goal of addressing issues identified in the Schrems II decision. These commitments include (i) strengthening the privacy and civil liberties safeguards governing U.S. signals intelligence activities through measures that would limit U.S. intelligence authorities’ data collection to what is necessary to advance legitimate national security objectives; (ii) establishing a new, multi-layered redress mechanism with independent and binding authority “consist[ing] of individuals chosen from outside the U.S. Government who would have full authority to adjudicate claims and direct remedial measures, as needed”; and (iii) enhancing the U.S.’s existing rigorous and layered oversight of signals intelligence activities, and requiring U.S. intelligence agencies to “adopt procedures to ensure effective oversight of new privacy and civil liberties standards.” The factsheet further stated that participating companies and organizations will continue to be required to adhere to the EU-U.S. Privacy Shield principles, including the requirement of self-certification through the U.S. Department of Commerce. EU individuals will also continue to have access to avenues of recourse to resolve complaints against businesses and organizations participating in the Framework, including through alternative dispute resolution and binding arbitration.

The White House stated that President Biden will issue an executive order outlining the aforementioned commitments “that will form the basis of the Commission’s assessment in its future adequacy decision.” According to the announcement, the U.S. and European Commission “will now continue their cooperation with a view to translate this arrangement into legal documents that will need to be adopted on both sides to put in place this new Trans-Atlantic Data Privacy Framework.”

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