Last week, the U.S. Department of Commerce published a notice of proposed rulemaking (NPRM) implementing Executive Orders (EO) 13984 and 14110 to prevent “foreign malicious cyber actors” from accessing U.S. infrastructure as a service products1 (IaaS Rule). The IaaS Rule seeks to strengthen the U.S. government’s ability to track “foreign malicious cyber actors” who have relied on U.S. IaaS products to steal intellectual property and sensitive data, engage in espionage activities, and threaten national security by attacking critical infrastructure.
On 27 November 2023, the Council adopted the final text of the Data Act which facilitates (and in certain cases, mandates) the access to (personal and non-personal) data. The Data Act was originally proposed by the European Commission in 2022. Alongside the EU Data Governance Act (which came into force in June 2022) the Data Act forms part of the EU’s Data Strategy which aims to “make the EU a leader in a data-driven society”. (more…)
The U.S. President and European Commission President announced in a joint press statement on March 25th, 2022 that an agreement “in principle” has been reached on a new Trans-Atlantic Data Privacy Framework (Privacy Shield Agreement 2.0). Once approved and implemented, the agreement would facilitate the transatlantic flow of personal data and provide an alternative data transfer mechanism (in addition to EU Standard Contractual Clauses and Binding Corporate Rules) for companies transferring personal data from the EU to the U.S. This is a welcome announcement for companies that have been dealing with the legal uncertainty of such data flows following the Schrems II decision in July 2020, which invalidated the EU-U.S. Privacy Shield 1.0 for international transfers of personal data.
On 23 February 2022, the European Commission (Commission) proposed a draft of a regulation on harmonised rules on fair access to and use of data – also known as the Data Act. The Data Act is intended to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all”.
If adopted in its current form, the new rules will impose far-reaching obligations on tech companies (such as manufacturers of connected products and cloud service providers) and give national authorities new enforcement powers to sanction infringements with fines of up to EUR 20 million or 4% of annual global revenue, whichever is higher. (more…)
The European Data Protection Board (“EDPB”), adopted on 18 June 2021 its final recommendations describing how controllers and processors transferring personal data outside the European Economic Area (“EEA”) may comply with the Schrems II ruling (“Final Schrems II Recommendations”). The Final Schrems II Recommendations, together with the new Standard Contractual Clauses (“SCCs”) adopted by the European Commission on 4 June 2021, will now allow organizations to proceed with addressing international data transfers following the landmark Schrems II ruling by the Court of Justice of the European Union in July 2020.
The Final Schrems II Recommendations have maintained the requirement to carry out a 6 Step assessment prior to transferring personal data outside the EEA in reliance on a data transfer tool, such as SCCs. However, there have been some important amendments from the draft recommendations published in November 2020 in order to:
- better align with the new SCCs recently adopted by the European Commission; and
- allow more flexibility in carrying out the assessment of third country laws in Step 3 by being able to take into account practice in the third country as well as the documented practical experience of the data importer.
Our previous blog post on the draft EDPB’s Schrems II recommendationsv provides further details on the 6 Step process that organizations should follow when transferring personal data from the EEA to a third country such as the U.S. Here we summarise some of the key differences in the 6 Steps as between the draft recommendations and the Final Schrems II Recommendations.
The European Commission has formally launched its legislative initiative aimed at increasing access to and further use of data, so that more public and private actors can benefit from technologies such as Big Data and machine learning. The Commission has published its inception impact assessment on the forthcoming Data Act, on which interested stakeholders can submit comments until 25 June 2021. In parallel, the Commission has launched a public consultation for the legislative initiative, to be conducted by an online questionnaire, with a deadline of 3 September 2021. Feedback will be taken into account for further development and fine tuning of the initiative to be tabled in Q3-Q4 2021.