Thursday, 16 July, 2020

European Union finds U.S. data transfer deal 'adequate' in first year review

GETTY- STOCKThe Privacy Shield allows firms to move data across the Atlantic without relying on such contracts GETTY- STOCKThe Privacy Shield allows firms to move data across the Atlantic without relying on such contracts
Bennie Garza | 20 October, 2017, 10:16

The European Commission last month conducted its first annual review of the framework as it seeks to ensure the United States lives up to its promises to better protect Europeans' data when they are transferred across the Atlantic - failing which it could suspend the Privacy Shield. "Our first review shows that the Privacy Shield works well, but there is some room for improving its implementation".

The Commission said that United States businesses "should not be able to publicly refer to their Privacy Shield certification before the certification is finalised by the DoC" and called on the DoC to be more "proactive" in searching for false claims of participation in the Privacy Shield by businesses.

"Compliance checks could for example take the form of compliance review questionnaires sent to a representative sample of certified companies on a specific "thematic" issue (e.g. onward transfers, data retention), or the DoC could systematically request to be provided with the annual compliance reports (which can be either a self-assessment or on outside compliance review) of certified companies seeking to be re-certified", the Commission said in its report.

Companies that transfer Europeans' personal data outside the bloc are forbidden from moving data to countries deemed to have inadequate privacy protections, unless they have special legal contracts in place.

Having reviewed all aspects of the Privacy Shield - with a specific focus on US legal developments - the Commission concludes that the Privacy Shield continues to ensure an adequate level of protection for the personal data transferred from the European Union to participating companies.

Closer cooperation between privacy enforcers i.e. the U.S. Department of Commerce, the Federal Trade Commission, and the EU Data Protection Authorities (DPAs), notably to develop guidance for companies and enforcers.

'The Privacy Shield is not a document lying in a drawer. During the EC's review of the Privacy Shield, "U.S. authorities expressly confirmed that the current U.S. Administration is not making any change to PPD-28", the EC noted in a fact sheet.

Appointment of a permanent Privacy Shield Ombudsperson (there is now an acting Ombudsperson) to enhance the redress and complaints procedure, and the appointment of more members to the United States Privacy and Civil Liberties Oversight Board, which is an independent agency within the executive tasked with analyzing the protection of privacy in the context of US counterterrorism policies and activities.

She also said she was concerned about potential changes to a controversial portion of the U.S. Foreign Intelligence Surveillance Act (FISA), which needs to be reauthorised before the end of the year.

The report will be sent to the European Parliament, the Council, the Article 29 Working Party of Data Protection Authorities and to the U.S. authorities.

Simon Migliano, Head of Research at, believes that the European Commission has offered little incentive for US authorities to implement its recommendations. The Commission will continue to closely monitor the functioning of Privacy Shield framework, including the USA authorities' compliance with their commitments. Now that Privacy Shield has been signed off for another year, what incentive is there for the USA to act?


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