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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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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European Parliament Votes to Approve New EU Data Protection Regulation and Immediate Suspension of Safe Harbor

The European Parliament has voted in a plenary session on March 12, 2014 to fully endorse the draft EU Data Protection Regulation (the Regulation) and the draft EU resolution calling for the immediate suspension of Safe Harbor (the Resolution), both of which were adopted previously by the European Parliament’s Civil Liberties Committee (the LIBE Committee).

According to the European Commission’s press release “today’s plenary vote means the position of the Parliament is now set in stone and will not change even if the composition of the Parliament changes following the European elections in May.”

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European Parliament’s Civil Liberties Committee Report calls for immediate suspension of Safe Harbor

A draft report by the European Parliament’s Civil Liberties Committee (the LIBE Committee) indicates that it is attempting to fundamentally alter the existing compliance mechanisms for transferring personal data from Europe. The recently leaked draft is dated December 23, 2013 and expresses the LIBE Committee’s response to the U.S. NSA surveillance programs, surveillance in various EU Member States and the impact on EU citizen’s fundamental rights and on transatlantic cooperation (the Report).

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Heads Up for Privacy, Data Protection and Cybersecurity in 2014

The new year will ring in significant privacy, data protection and cybersecurity changes in the U.S., Europe, Asia and elsewhere around the world. Below are some key developments and possible concrete action items for General Counsels, Chief Privacy Officers and Chief Information Officers:

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European Commission makes recommendations to strengthen Safe Harbor

The European Commission has released a comprehensive package of communications, reports and papers that set out actions which the Commission believes can restore trust in transatlantic data flows between the European Union and the United States following recent concerns over access to data by intelligence agencies.

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Business Concern over Amendments to Proposed EU Data Protection Regulation

The European Parliament’s Civil Liberties Committee has published its draft report on the proposed EU Data Protection Regulation that is causing concern for many corporations. http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/pr/922/922387/922387en.pdf.

The report sets out amendments to the draft EU data protection regulation published by the European Commission last January (the “Regulation”)
http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf.

Despite being one of the most lobbied pieces of European legislation, many will be disappointed that as amended the draft Regulation still imposes very significant burdens on businesses that are in the EU, or which are outside the EU but offer goods or services to EU customers, with fines of up to 2% of annual worldwide turnover.

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EU Data Protection: “Binding Corporate Rules” as an Alternative to the “Safe Harbor” for Multinationals that Transfer Data to the U.S.

Global corporations with offices or customers in the European Union should be aware of the latest European Union proposal for compliance with its Data Protection Directive 95/46/EC with respect to internal transfers of information among members of the same corporate group. Interested parties will be submitting comments through September 30, 2003.

View Alert.

Regulation of Transborder Data Flows

As markets become more global, data protection awareness and compliance in transborder data flows is becoming increasingly important. There are important issues for companies wishing to send personal data to countries outside the European Economic Area (EEA). This paper considers in detail the Eighth Principle under the Data Protection Act 1998 (the Act) and the ways in which compliance with its requirements may be achieved.