By

Cameron F. Kerry

03 February 2016

Article 29 Working Party Confirms that EU Standard Contractual Clauses and Binding Corporate Rules are Still Valid – for the Time-Being

The Article 29 Working Party has confirmed in a statement that EU Standard Contractual Clauses and Binding Corporate Rules are still valid data transfer mechanisms for the time being. The announcement was made following a meeting held to discuss the consequences of the Court of Justice of the European Union’s (“CJEU“) decision invalidating the US-EU Safe Harbor Framework and just one day after the European Commission announced that a political agreement had been reached on a new framework, the “EU-US Privacy Shield”.

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02 February 2016

New Framework on Transatlantic Data Flows Agreed – the “EU-US Privacy Shield”

The European Commission has announced that a political agreement has been reached on a new framework on transatlantic data flows. The announcement was made in a press conference on  February 2nd by Vice President Ansip and Commissioner Jourová , in which the Commissioner expressed the hope that the new framework, dubbed the “EU-US Privacy Shield,” will be in force within three months. The Commissioner identified three key elements of this new framework: (i) strong obligations on companies handling the personal data of Europeans and robust enforcement; (ii) clear safeguards and transparency obligations on US government access; and (iii) effective protection of the rights of EU citizens, with several redress possibilities.

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21 December 2015

Cybersecurity Act of 2015 Signed Into Law

On December 18, President Obama signed into law an omnibus spending package for 2016 that included the Cybersecurity Act of 2015 (known in former versions as the Cybersecurity Information Sharing Act). After years of debate, the Cybersecurity Act establishes a framework to facilitate and encourage confidential two-way private sector sharing of cyberthreat information with the federal government and provides liability shields for cyberthreat information sharing, as well as for specific actions undertaken to defend or monitor corporate networks. The Cybersecurity Act also designates the Department of Homeland Security (DHS) to coordinate cyberthreat information sharing.

The Cybersecurity Act has important implications for cooperation among industry participants and with regulatory agencies in development of effective cybersecurity programs. Public-private cyberthreat information sharing is an important step to improve companies’ defenses and responses to the changing cyberthreat landscape. Though the Act is effective immediately, the attorney general and DHS secretary must release guidelines within 90 days.

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16 December 2015

Agreement Reached on EU General Data Protection Regulation

After almost four years of intense negotiations, on 15 December 2015, an informal agreement on the proposed EU Data Protection Regulation was reached between the Council of Ministers and the European Parliament. An extraordinary meeting of the LIBE Committee is scheduled for 17 December 2015 for the 28 EU Member States to vote on the text. Final adoption of the Regulation is likely to be in early 2016.

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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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