By

Cameron F. Kerry

06 July 2016

Privacy Shield Text Updated

The final text of the much anticipated EU-US Privacy Shield has been sent by the European Commission for review and approval to the Article 31 Committee, which includes representatives from all 28 Member States.  Approval by the Article 31 Committee will pave the way for a final decision by the Commission adopting the Privacy Shield, expected on 11 July, 2016.  If approved, the Privacy Shield will take effect as soon as the US Department of Commerce establishes a new process for US companies that wish to use the Privacy Shield as a legal basis for data transfers of personal data from the EU to certify in accordance with the new framework.  Businesses should examine the final Privacy Shield documents and requirements and determine whether to proceed with certification once the Privacy Shield is approved.

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05 July 2016

Post-Brexit EU May Be Stranded By Its Own Data Rules

*This article first appeared in Forbes on July 1, 2016.

So now the European Union’s “sceptered isle” has voted to sever its bonds with its continental partners – with the wish that (as described in a Shakespeare passage memorized by every English schoolchild for generations) it can be set off by the sea “against the envy of less happier lands.”  The outcome demonstrates the depth of dissatisfaction with a world that has become interconnected.

In the meantime, the EU is facing its own tensions with global interconnectedness that threaten to turn it into a virtual island as it heads further down the path of cutting off the flow of data to “third countries” outside the EU.

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27 June 2016

Amid news of Brexit, UK ICO seeks to provide reassurance

As the world began to grapple with the implications of the UK’s vote to withdraw from the European Union, or “Brexit,” the UK Information Commissioner has sought to provide reassurance, issuing a statement reinforcing continuity of data protection principles and a commitment to the digital economy.

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20 May 2016

Council Adopts EU-wide Cybersecurity Directive

On May 17, 2016, the European Council formally adopted the Network and Information Security Directive (the “NIS Directive“) at first reading. According to the Council press release, the NIS Directive is meant to increase cooperation among EU Member States on the vital issues of cybersecurity.

The NIS Directive was first proposed by the European Commission in 2013 as part of the EU’s Cyber Security Strategy. The formal adoption of the NIS Directive by the Council follows on from the political agreement reached in December 2015.  It must now be approved by the Parliament at second reading. The NIS Directive is expected to enter into force in August 2016, after which Member States will have 21 months to implement it into their national laws.

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15 April 2016

Article 29 Working Party Releases Its Wish List for the EU-U.S. Privacy Shield

On April 13, the Article 29 Working Party announced that it had completed its assessment of the EU-U.S. Privacy Shield documentation. The announcement was followed by the release of a 58-page Opinion on the European Commission’s draft adequacy decision on the Privacy Shield.

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14 April 2016

EU General Data Protection Regulation has been Adopted

On Thursday, April 14, 2016, the European Parliament voted to adopt the long-awaited EU General Data Protection Regulation (the GDPR). During the plenary session Jan Philipp Albrecht, rapporteur of the European Parliament for the GDPR, welcomed the adoption following what he described as years of “democratic debate and legislative process.” Albrecht further described the adoption as “a huge step forward towards creating a single legal environment for the digital world of tomorrow.” Today’s parliamentary vote completes the legislative process for adoption of the GDPR.  The final step will be for the GDPR to be published in the Official Journal of the EU which will likely take place in May 2016. Companies and regulators will then have two years from the date of publication in which to implement the requirements under the GDPR. Businesses should now seriously consider the impact of the GDPR and start planning for implementation.

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12 April 2016

EU General Data Protection Regulation Takes Significant Steps Towards Adoption

The past several days, the GDPR (the EU General Data Protection Regulation) took two significant steps towards adoption.  On Friday, April 8, 2016, the European Council adopted the GDPR at first reading.  Then today, Tuesday, April 12, 2016, the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (the LIBE Committee) approved the GDPR by a 54-3 vote with one abstention. The European Parliament is due to vote on the GDPR in a second reading at a plenary session this coming Thursday. That will complete the legislative process for adoption of the GDPR. The final step will be for the GDPR to be published in the Official Journal of the EU which will likely take place in May 2016. After publication, the GDPR will apply two years after the date of publication, allowing companies and regulators a grace period to prepare. The interpretation of the GDPR will be shaped by guidance from the new European Data Protection Board.

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29 February 2016

Details of the EU-U.S. Privacy Shield Are Published

The much-anticipated documentation for the EU-U.S. Privacy Shield, a new framework on transatlantic data flows, was published by the European Commission on February 29, 2016. The framework now will undergo a process of review and approval, including by the EU’s Article 29 Working Party, which is due to finish its review by the end of March 2016. If approved, it will take effect after an implementation period, during which all companies that wish to use the Privacy Shield as a basis for data transfers will have to certify in accordance with the new framework.

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29 February 2016

Having an Open and Honest Debate About Security

*This post originally appeared in Lawfare on February 25, 2016.

Let’s not pretend that that the outcome the Justice Department seeks in the Apple case is limited to only a single case and just this particular phone.

This unquestionably involves a special case. Because of the specter of an ISIS connection, the San Bernardino attacks send chills down the spine of every American. The ISIS connection makes this case different from other cases of homegrown radicalization. And the actual owner of the iPhone has consented to the search.

It is these special characteristics that make the San Bernardino case a compelling vehicle for the FBI to press its concerns about end-to-end encryption on devices and apps.  … [Read More]

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26 February 2016

President Obama Signs Judicial Redress Act

On Wednesday, February 24, President Obama signed the Judicial Redress Act into law.  “What it does in the simplest terms is makes sure that everybody’s data is protected in the strongest possible way with our privacy laws—not only American citizens, but also foreign citizens,” President Obama said at signing.  “We take our privacy seriously.  And along with our commitment to innovation, that’s one of the reasons that global companies and entrepreneurs want to do business here.” According to EU Commissioner Věra Jourová, “The signature of the Judicial Redress Act by President Obama is a historic achievement in our efforts to restore trust in transatlantic data flows . . . . It will strengthen privacy, while ensuring legal certainty for transatlantic data exchanges between police and criminal justice authorities. This is crucial to keep Europeans safe through efficient and robust cooperation between the EU and the U.S. in the fight against crime and terrorism.”

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