Now That Details Of The EU-U.S. Privacy Shield Have Been Revealed, Should Your Company Get Ready To Embrace It Or Avoid It?

Author:Ms Cynthia O'Donoghue, Paul Bond, Kate Brimsted, David R. Cohen, Anthony J. Diana, Daniel Kadar, Mark S. Melodia, Therese Craparo, Thomas Fischl, Philip Thomas, Katalina Bateman, Tom C. Evans, Doretta Frangaki, Caroline Gouraud, Dr. Alexander Hardinghaus, LL.M. and Chantelle A. Taylor
Profession:Reed Smith
 
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Executive Summary In the latest step toward finalising a replacement for the defunct Safe Harbor program, the European Commission has published its draft adequacy decision, formally supporting its view that the proposed EU-U.S. Privacy Shield will ensure an adequate level of protection for the transfer of personal data from the EU to U.S. companies which enlist in the program. It also introduces a range of enhanced rights and redress mechanisms for EU citizens. Once finalised, an adequacy decision by the European Commission establishes that the non-EU country (or program) which is the object of the decision ensures an adequate level of protection of personal data and means that personal data can flow to it from any of the 28 EU member states without any further restrictions.

In the latest step toward finalising a replacement for the defunct Safe Harbor program, the European Commission has published its draft adequacy decision, formally supporting its view that the proposed EU-U.S. Privacy Shield will ensure an adequate level of protection for the transfer of personal data from the EU to U.S. companies which enlist in the new program. Once issued, an adequacy decision by the European Commission establishes that a non-EU country ensures an adequate level of protection of personal data and means that personal data can flow from any of the 28 EU member states without any further restrictions.

The draft decision opened up the full details of the Privacy Shield to public and regulatory scrutiny for the first time and is an important milestone towards the approval and adoption of the Privacy Shield, something which the Commission has proclaimed will "restore trust in transatlantic data flows".

But does the Privacy Shield look set to be a popular replacement for companies which were former Safe Harborites, or is it too onerous? At the same time, will consumers be reassured by the Privacy Shield or will privacy advocates be gearing up to mount legal challenges: Safe Harbor 2.0 meets Max Schrems 2.0?

Adequacy findings The European Commission announced the release of its draft adequacy findings on February 29, 2016, following a review of the features of the Privacy Shield, in the context of U.S. law and practice. It confirmed its view that the safeguards under the proposed Privacy Shield offer data protection standards equivalent to those in the EU, and also satisfy the requirements set out in the Court of Justice of the European Union's decision in Maximillian Schrems v Data Protection Commissioner (the case which invalidated Safe Harbor).

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