On February 10, 2021, the Council of the European Union (which includes representatives of the European Union (EU) member states, hereinafter Council) reached an agreement on the ePrivacy Regulation proposal that governs the protection of privacy and confidentiality of electronic communications services (ePrivacy Regulation).
The first draft of the ePrivacy Regulation was approved by the European Commission in 2017 and has since been under discussion in the Council. The current agreement in the Council comes shortly after Portugal took over the Council presidency (on January 1, 2021) and released a revised draft of the ePrivacy Regulation (on January 5), which was the 14th draft including the original EU Commission proposal. The present agreement is therefore a breakthrough in the negotiation process and allows the Portuguese Council presidency to start negotiations with the European Parliament on the final text.
On January 19, 2021, the U.S. Department of Commerce (Commerce) issued interim final regulations (interim rules) implementing Executive Order 13873, Executive Order on Securing the Information and Communications Technology Services Supply Chain (EO), which was intended to address alleged threats against information and communications technology and services (ICTS) in the United States. The new review mechanism focuses on transactions involving any acquisition, importation, transfer, installation, dealing in, or use of ICTS that has been designed, developed, manufactured, or supplied by parties owned by, controlled by, or subject to the jurisdiction or direction of “foreign adversaries.”
While the focus on the rules is not foreign investment per se, it will complement the Committee on Foreign Investment in the United States’ (CFIUS) investment security review mechanisms. Indeed, the interim rules borrow several concepts and definitions from CFIUS’s recently amended regulations.
Commerce invited interested parties to submit comments on the interim rules. Parties must submit comments by March 22, 2021. Commerce will publish final regulations after considering any comments submitted.
This post provides key takeaways and a brief summary of Commerce’s new review mechanism.
Foreign investment in many entities regulated by the U.S. Federal Communications Commission (FCC) has long been subject to an interagency review process for the consideration of national security, foreign policy, and trade policy issues, referred to as “Team Telecom.” Pursuant to an April 2020 executive order and an October 2020 report and order of the FCC, this process has been formalized and streamlined under the new Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (Committee).