Since the joint announcement by US President Joe Biden and European Commission President Ursula von de Leyen, on 25 March 2022, of an agreement in principle on the long-awaited replacement to the EU-US Privacy Shield, transatlantic data flows have again become the focus of GDPR discussions. The lack of details provided to date has, however, resulted in many organisations (and legal commentators alike) wondering where this leaves them.

Should US organisations prepare for certification to yet another incarnation of the Safe Harbor (which will almost certainly be subject to prompt legal challenge in the form of Schrems III)? Should organisations subject to the GDPR continue with their transfer impact assessments and the uncertainty of the standard contractual clauses (“SCCs”) when transferring personal data to the US? Will the new safeguards have any impact on the SCCs at all? And how will this affect transfers to the US from the UK or other non-EU jurisdictions?

Representatives of the US Government and the European Commission recently provided some much-needed context, including further details around the timing of the replacement framework and of the potential shape of the new redress mechanism. Their comments offer some hints about the UK’s approach to transatlantic and other international data flows.

Continue Reading Transatlantic Data Flows – Where Are We Now?

A recent decision by the Austrian Supervisory Authority (“SA”) casts a spotlight on the complexities of data transfers and cookie use, and highlights a shift in regulatory focus onto these topics in the year ahead. Regulators around Europe are increasingly beginning to weigh in on such transfers, and the outcomes of their deliberations will shape the data transfer compliance landscape in the months to come. These decisions present complex questions about the future of data transfers in the EU and UK.

Continue Reading Increased EU Scrutiny of US Data Transfers Through Cookie Use

As 2021 comes to a close, so does our 12 Days of Data series, but we will see you on the other side in 2022 with more posts on the top privacy and data protection issues. 2021 was an interesting year. While vaccinations spread and some sense of normalcy started to return, new strains of COVID-19 led to additional waves of shutdowns that stalled many of the debates. In 2022, we anticipate that the move toward a new normal will continue, and we will once again start to see traction on some of these data, privacy, and cybersecurity issues. As a preview, here are some of the key areas where we expect to see potential developments in 2022.

Continue Reading Closing out the 12 Days of Data: What to Expect in 2022

The Courts of Justice of the European Union (CJEU) held in its July 2020 Schrems II decision that, in order for entities in other countries to import personal data from the European Economic Area (EEA), the importer must be able to provide data protections ‘essentially equivalent’ to those the EEA offers under its General Data Protection Regulation. The CJEU expressed particular concern that United States’ national security intelligence gathering laws prevent U.S.-based entities from providing such protections. This decision has sharply limited the sharing of clinical research data from the EEA to the United States. After describing the pertinent aspects of the Schrems II decision, this article evaluates U.S. national security intelligence gathering frameworks, including Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333. The article then leverages recent draft guidance from the European Data Protection Board to explain how entities may be able to adopt widely used contractual and technical measures, such as data pseudonymization, to provide ‘essentially equivalent’ protections in the clinical research context.

Continue Reading Demystifying Schrems II for the Cross-Border Transfer of Clinical Research Data

Cyber SecurityAs we stand at the beginning of 2021 and a new presidential administration, we look back on the year behind us. Hindsight is always 2020, and 2020 may be best viewed in hindsight.  We saw rapid changes in the privacy space, prompted in part by the global COVID-19 response. Infrastructure and services across multiple sectors continue to rely on data and digital platforms to function. Five prominent developments shaped the data privacy environment in 2020.

Continue Reading Privacy Year in Review: 2020’s Hottest Topics

The Court of Justice of the European Union (CJEU) dealt a blow to transatlantic data flows in July with its decision in Schrems II, invalidating the EU-U.S. Privacy Shield while conditionally approving the continued use of Standard Contractual Clauses (SCC). In a white paper published late last month, the U.S. government responded to the CJEU’s critical appraisal of American intelligence agencies’ data-collection practices by identifying Schrems II’s shortcomings and offering guidance to companies seeking to comply with it. Schrems II is problematic in various ways, the multi-agency paper concludes, but with minor adjustments, most EU-U.S. digital dealings should be able to continue as before.
Continue Reading What the CJEU Missed in Schrems II: American Agencies Respond

Cyber SecurityThe European Court of Justice this morning issued a significant – and fairly surprising – ruling on international data transfers in the Schrems II case. Standard contractual clauses remain valid, but the Privacy Shield is invalid and cannot be relied on to legitimise transfers of personal data from the EEA to the US.
Continue Reading Privacy Shield Invalid but SCCs Survive… What next for international personal data transfers?

The Opinion of Advocate-General (AG) Henrik Saugmandsgaardøe in the “Schrems II” case (C-311-18) was delivered on 19 December and will likely leave organisations, which currently rely on EC Commission-approved standard contractual clauses to ensure adequate protection for personal data that they transfer internationally heaving a collective sigh of relief, at least for the moment.

Continue Reading Schrems II and Standard Contractual Clauses – the Advocate-General’s Opinion