By

Cameron F. Kerry

04 December 2015

Negotiations on the General Data Protection Regulations Continue

As the legislative journey for the General Data Protection Regulation (“GDPR”) nears its conclusion, last week (Nov. 27,2015) saw the publication of a further compromise text which left the door open for additional “trilogue” discussions on the much-debated subjects of administrative fines, data protection officers (“DPOs”), and data breaches, as well as details of other provisions.

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19 November 2015

The Opportunities and the Challenges of Big Data for Business and Public Policy*

*Based on Remarks at the Big Data East Big Data Innovation Conference, September 9, 2015

I believe in the enormous potential of big data. Erik Brynolfsson and Andrew McAfee, authors of The New Machine Age and leading scholars of the digital economy, have compared the power and granularity of computational science to the transformation in understanding of nature that occurred when Anton Van Leuwenhook first peered at samples through his newly-invented microscope. We are seeing new advances in medicine, in social science, new ways of teasing out causation from correlation.

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04 November 2015

EU Commissioner Jourová encourages further progress amidst Safe Harbor fall out

The 37th Annual International Conference of Privacy Commissioners in Amsterdam last week was long planned around the proposals of the transatlantic Privacy Bridges Project for a series of concrete steps to bring the U.S. and EU closer together on privacy.  But, with the CJEU’s Schrems decision blowing up the Safe Harbor bridge not long before the conference, there were many references to Safe Harbor as “the elephant in the room.”  Perhaps aptly, the logo chosen for conference was a drawbridge.

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25 October 2015

Safeguards and Oversight of U.S. Surveillance Under Section 702

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union invalidated the US-EU Safe Harbor agreement on the basis that the European Commission had failed to sufficiently assess the protection of personal data of Europeans under the U.S. data protection regime. The Court alluded to U.S. surveillance activities under the PRISM program authorized by Section 702 of the Foreign Intelligence Surveillance Act, and appeared to assume U.S. law permits mass surveillance of Europeans with few limits, little clarity, and no opportunity for redress. However, the Court did not actually review or assess the applicable legal authorities, remedies, or array of checks and balances, safeguards, and independent oversight.  If it had done so, it would have found numerous overlapping controls that assure that such surveillance is neither massive nor indiscriminate, but instead targeted to specific individuals and limited purposes, and provides legal remedies for Europeans. Indeed, prior to the scheduled expiration of the 702 program in 2017, U.S. congressional oversight committees will likely be comparing whether privacy safeguards in place for similar foreign programs are as effective as those of Section 702.

Significantly, the independent Privacy and Civil Liberties Oversight Board reviewed surveillance under Section 702 and found: “[T]the Section 702 program is not based on the indiscriminate collection of information in bulk. Instead the program consists entirely of targeting specific [non-U.S.] persons about whom an individualized determination has been made.” Key safeguards and controls include…

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16 October 2015

European Data Protection Authorities Give Companies Three Months to Assess New International Data Transfer Solutions and Call “Urgently” for Safe Harbor 2.0 – Model Contracts and Binding Corporate Rules Remain Viable

The Article 29 Working Party, which includes representatives from all EU Data Protection Authorities, released its much-awaited guidance on the judgment by the European Court of Justice declaring the European Commission’s decision on the Safe Harbor to be invalid. Described as “a collective and common position on the judgment,” the “first consequences to be drawn at European and national level” are as follows:

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06 October 2015

Safe Harbor Declared Invalid by European Court of Justice

Today the European Court of Justice (“ECJ”) issued its judgment in the Max Schrems case in which it declared the European Commission’s decision on Safe Harbor as invalid. The Commission’s decision in 2000 found that companies participating in the US Department of Commerce Safe Harbor framework were operating under an “adequate” data protection regime and could thus rely on the Safe Harbor as a permissible basis to transfer personal information from the EU to the US.  The judgment comes less than two weeks after the publication of the opinion from Advocate General Bot in which he advised that national Data Protection Authorities (“DPAs”) must be able to investigate an individual request to suspend data flows to the US by a company certified under the Safe Harbor scheme, and in which he also found the Safe Harbor scheme to be invalid.

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25 September 2015

Expanding the Digital Economy Through Data

Originally posted by the U.S. Chamber Foundation, Sept. 22, 2015, as part of a series of articles relating to the Internet of Everything project. Read more at uschamberfoundation.org/ioe.

The reverberations throughout global markets of China’s economic slowdown and stock market fall remind us once again how much the world’s major economies depend on each other.

Nowhere is this more true than between the European Union and the United States, the world’s two largest economic entities.  Together, they account for one-half of the world’s GDP and about one-third of its trade flows.  So the United States has a significant stake in the success of the European Commission’s Digital Single Market Strategy. Its promise of economic growth for Europe will help to lift the American economy as well, and Americans share the Commission’s vision of information and communications technology as “the foundation of all modern innovative economic systems.” Read More

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24 September 2015

Opinion by ECJ Advocate General Finds Safe Harbor Invalid

In a seismic recommendation, Advocate General Yves Bot at the European Court of Justice (ECJ) issued his opinion in the closely watched Max Schrems case challenging the U.S.-EU Safe Harbor Agreement and has found Safe Harbor to be invalid. The opinion is not legally binding on the ECJ, although the Court most often follows the opinions of the Advocate General. The Advocate General recommendation makes the status of the existing Safe Harbor agreement even more uncertain, but acknowledges negotiations between the European Commission and the U.S. for an updated agreement and may leave room for a different result if such an agreement addresses concerns in the opinion about U.S. bulk surveillance.

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15 July 2015

Precision Medicine Initiative: Proposed Privacy & Trust Principles

The White House is soliciting public comments on its Proposed Privacy and Trust Principles (the Proposed Principles) for the Precision Medicine Initiative (PMI). PMI is a federal initiative to support research, technology and policies that enable the development of individualized treatments, and is backed by a $215 million investment under President Obama’s 2016 Budget.

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15 June 2015

One Step Closer to the EU Data Protection Regulation

This week we moved one step closer to the adoption of the proposed EU Data Protection Regulation with the agreement by the Council of Ministers on its proposals for the draft Regulation. The Regulation has been described as the most lobbied piece of European legislation in history and, once adopted, will have a significant impact on governments, businesses and individuals.

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