EU Parliament Committee Calls On The Commission For Immediate Action On US Data Transfers

Author:Ms Susan Foster
Profession:Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

The EU Parliament committee that is charged with considering data protection matters (LIBE) has issued a press release calling on the European Commission to take action before the end of 2015 to come up with alternatives to Safe Harbor. Importantly, LIBE has also called on the Commission to reassess whether the European Court of Justice's recent invalidation of Safe Harbor casts doubt on other means for legitimizing the transfer of personal data from the EEA to the US.

As we have commented previously here, the ECJ's rationale in the Schrems Safe Harbor decision could be used to attack both BCRs and Model Clauses. LIBE certainly seems to have picked up on that also.

Furthermore, while many companies are now focusing on getting the data subject's consent to data transfers (one of the available "derogations" from the ban on ex-EEA data transfers), some EU legal commentators think that courts will take an extremely narrow view of the validity of consents that are built into privacy policies or terms of use (or possibly even any consent in any form) when the personal data is being transferred to the US. Many Europeans seem to be persuaded that the NSA has unbounded authority (and capacity) to requisition European personal data, and that any transfer of personal data to the US is inherently offensive to the "fundamental freedoms " of the individual (which includes the right of privacy) and should not be permitted under virtually any circumstance. (For a different view, see Peter Swire's article on US intelligence laws and practices based on his participation in President Obama's independent Review Group on Intelligence and Communications Technology.) Unfortunately, given the prevalence of the view in Europe that individuals' privacy rights are not adequately protected against the indiscriminate mass surveillance by the US, there is a real possibility that, in Europe, the individual's current right to make a decision about allowing his or her personal data to be transferred to the US might be lost through legislation (in particular, the new Regulation) or the courts.

Here's an excerpt from LIBE's press release:

MEPs welcome...

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