On 6th April, 2017, the European Parliament adopted a resolution stating that there are deficiencies in the EU-US data transfer accord Privacy Shield which must be “urgently resolved” in order to give citizens and companies legal certainty. MEPs called on the EU Commission to conduct an assessment and to ensure that the Privacy Shield complies sufficiently with the EU Charter of Fundamental Rights and new EU data protection rules. (more…)
The decision by the Court of Justice of the European Union (the CJEU) on Oct. 6, 2015, invalidating the U.S.-EU Safe Harbor Decision (the Judgment) is a landmark judgment. Case C-362/14 Maximillian Schrems v Data Protection Commissioner  ECLI: EU:C:2015:650. By voiding the legal basis for transatlantic data transfers for the 4,400 companies reliant on U.S.-EU Safe Harbor, the Judgment began what has been a seismic year for data protection and crossborder data transfers in the European Union, whose aftershocks will reverberate throughout 2017 and beyond.
Following the establishment of the E.U. – U.S. Privacy Shield last summer, Switzerland has now agreed to a similar framework facilitating the transfer of personal data from Swiss companies to companies based in the United States (hereinafter “Swiss – U.S. Privacy Shield” or “Privacy Shield”) that will allow companies to certify adherence to the framework as of 12 April 2017.
2016 was a year of seismic changes in the global data protection and privacy landscape. Here, we look back at the top ten events and issues that shaped 2016, and are poised to shape the year ahead as well.
Year In Review
1. GDPR Adoption
On April 14, the European Parliament voted to adopt the long-awaited EU General Data Protection Regulation (GDPR), formally completing adoption of the GDPR. The GDPR was published in the Official Journal of the EU on May 25, 2016, giving companies and Member States until the May 25, 2018 effective date to implement the Regulation fully. In the wake of its adoption, businesses should have planning under way for implementation of the significantly expanded Regulation by evaluating whether they are subject to the expanded jurisdiction, and if so, completing an internal gap analysis of current data protection practices as compared with the new requirements and rights under the Regulation. Some of the key aspects to consider include data breach response planning under the new 72-hour notice requirement, reviewing existing data protection notices and consents for the more robust obligations, identifying current profiling activities and existing data protection and retention policies and procedures, ensuring privacy impact assessments are carried out where required, and evaluating whether there is an obligation to appoint a data protection officer. Despite the time until the effective date, the extensive preparation necessary to comply presents a challenge as companies around the world refocus resources to develop compliance plans.
2. Political Cyber Warfare
There is a new front in geopolitical battles. (more…)
*This post first appeared in Lawfare on January 17, 2017.
As the new administration takes office this week, we will start to see just how literally to take Donald Trump’s pronouncements and the promised targeting of his predecessor’s executive orders for immediate destruction. Trade policy appointments signal that statements about being aggressive against barriers to trade should be taken very literally. Wilbur Ross, the prospective Commerce Secretary; Peter Navarro, tapped to lead a new Trade Council on the White House staff; and Robert Lighthizer, designated U.S. Trade Representative, all have been vociferous in calling out China’s mercantilist policies and advocating a more transactional approach to breaking down market barriers in the world’s second largest national economy.
On December 13, 2016 at its plenary meeting, the EU’s Article 29 Working Party (“WP29”) adopted guidance on the EU-US Privacy Shield Framework for businesses and individuals in Europe. Since the U.S. Department of Commerce began accepting certifications to the Privacy Shield in August 2016, almost 1,300 companies have self-certified to the Privacy Shield and we understand many more are awaiting approval from the Department of Commerce.
As part of a housekeeping effort, the U.S. Copyright Office issued a final rule that changes the designated agent mechanism protecting online service providers from certain copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”). Companies will now have to re-register every three years, and existing registrations will cease to be valid by the end of next year.
The future of privacy and cybersecurity under President-elect Trump – with a Republican-controlled House and Senate – is far from certain, but his campaign comments indicate an emphasis on robust cybersecurity, perhaps with more openness to both offensive as well as defensive initiatives.
Last week, we posted a brief account of the two challenges that have been filed in the General Court of the Court of Justice of the European Union challenging the Privacy Shield, first by Digital Rights Ireland in September and then by La Quadrature du Net last Monday. Today, the Official Journal of the European Union published notice of the Digital Rights Ireland pleading, the first time it has been publicly available.
This posting means the clock has started running on applications to intervene. Applications to intervene are due in 60 days, or January 6, 2016. To establish a right to intervene, an application must include a statement of the circumstances showing “an interest in the result” of the case.
Two legal challenges have been filed at the Court of Justice of the European Union (“CJEU”) against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield. Privacy Shield was adopted on July 12, 2016 after the CJEU struck down the earlier Safe Harbour agreement in October 2015 over concerns about U.S. surveillance techniques.