Further bumps along the road to an EU-US Privacy Shield

The European Data Protection Supervisor (EDPS) has voiced concerns over the proposed EU-US Privacy Shield agreement. The Privacy Shield is intended to replace the Safe Harbour scheme which enabled transfers of personal data between businesses in the EU and the US until it was ruled invalid last year by the European Court of Justice.

The EDPS is an independent supervisory authority whose aim is to protect personal data and privacy and promote good practice in EU institutions and bodies. In his Press Release and Opinion, the EDPS expressed concerns that the new approach is not ‘robust enough to withstand future legal scrutiny’ and that ‘significant improvements’ were needed to ‘respect the essence of key data protection principles with particular regard to necessity, proportionality and redress mechanisms’.

The EDPS’s opinion comes shortly after similar concerns have been raised by other EU data protection watchdogs. In April, the Article 29 Working Party expressed concerns about the scope for ‘massive and indiscriminate’ bulk collection of EU citizens’ personal data by US authorities (see our article EU-US Privacy Shield – Is the draft “Adequacy Decision” adequate? for more information). In May, the Article 31 Committee failed to reach agreement, concluding that more time was needed to consider the proposed Privacy Shield due to the fact that too many details are currently unclear and potentially subject to abuse. The Article 31 Committee has potential power of veto over the whole agreement.

The Privacy Shield was agreed by the European Commission and the US Department of Commerce in February and was intended to be ratified in June. It remains to be seen whether the concerns raised will result in revisions to the proposed agreement. If the concerns are not addressed, it seems that the Privacy Shield could be at risk of suffering a similar fate to its predecessor, Safe Harbour. The ongoing uncertainty in European data transfers to the US therefore continues.

For further information on the issues raised, please contact a member of the commercial team at Stevens & Bolton.

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