January 10, 2017 marked another important step towards reform of the EU data protection framework, with the release of the EU Commission’s proposals for a new Regulation governing privacy and electronic communications.
The main aims of the draft Regulation are to update the ePrivacy Directive to reflect new technologies and to better align it with GDPR. In addition to taking effect on the same day as the GDPR (25th May, 2018), penalties for non-compliance envisaged by the draft Regulation are the same as the GDPR, (i.e. potentially fines of €20m or 4% of annual global turnover, whichever is higher).
Happy U.S. National Cybersecurity Awareness Month! One year ago, in recognition of the Department of Homeland Security’s annual campaign to raise awareness about cybersecurity, Orrick’s Cybersecurity & Data Privacy Group launched its award winning blog Trust Anchor.
Almost daily we hear news about data breaches, cybersecurity and privacy enforcement proceedings, litigation, and new laws and regulations. Trust Anchor covers it all: recent cases, legislative and regulatory developments, emerging compliance standards and best practices for cybersecurity and privacy risk management, insurance trends and more! But, we don’t just report on these events, we highlight key takeaways and what these developments mean for you.
As of, August 1st, 2016, U.S. companies can now join the Safe Harbor successor EU-U.S. Privacy Shield (the “Privacy Shield”) for personal data transfers from the EU to the U.S.
This post gives a high level summary of what companies should consider with the Privacy Shield.
On July 12, 2016, the European Commission (the “Commission”) formally adopted the adequacy decision necessary to implement the Privacy Shield. This means that transfers of personal data from the EU to the U.S. that are made pursuant to the Privacy Shield’s requirements are lawful under EU law. The Privacy Shield replaces the EU-U.S. Safe Harbor Framework, which was invalidated by the Court of Justice of the European Union (“CJEU”) on October 6, 2015.
On July 6, 2016, the European Parliament passed the Network and Information Security (“NIS”) Directive, over three years after the initial draft was proposed. The Directive will enter into force in August 2016. EU Member States will then have 21 months to transpose the Directive into their national laws and 6 additional months to identify the operators of certain essential services that are subject to the Directive’s requirements.
After receiving the approval of the EU Member States, through the Article 31 Committee, last Friday, the European Commission has today, July 12th, 2016, formally adopted the Adequacy Decision necessary to implement the EU-U.S. Privacy Shield (the Decision).
The Decision will be notified to Member States today and, as such, will be effective immediately.
The adoption process had stalled in recent months due to ongoing concerns about the access to personal data by public authorities in the U.S. You can read about some of these concerns in our previous blog post.
The European Commission has received further commitments from the U.S. and has agreed clarifications and improvements on the bulk collection of data, strengthening the Ombudsperson mechanism and more explicit obligations on companies as regards limits on retention and onward transfers. Those commitments and clarifications have been sufficient to allay the EU member states, at least for now.
The Privacy Shield is subject to an annual review mechanism.
Today the EU-U.S. Privacy Shield was approved by the EU Member States, which sets the stage for the European Commission to grant final approval to the Privacy Shield as a basis for EU-U.S. transfers of personal data.
This development follows criticisms of the Privacy Shield this past April from the Article 29 Working Party, an advisory group comprised of the EU privacy regulators. We summarized the primary criticisms in a prior blog post. The Working Party was responding to the draft adequacy decision that was released by the European Commission on February 29, 2016, which we summarized here. The revisions to the Privacy Shield are intended to address the criticisms of the Working Party but it is not yet clear if the criticisms have been fully reflected.
Website providers that collect dynamic Internet Protocol addresses (“IP address”) from website visitors may soon be subject to even more scrutiny from data protection authorities in the EU.
Last week, Europe’s Advocate General Manuel Campos Sánchez-Bordona (one of the advisors to the European Court of Justice, “ECJ”) released an opinion which, if followed by the ECJ would end a long debated question whether IP addresses are personal data subject to EU data privacy law. The Advocate General takes the view that dynamic IP addresses are personal data when being in the hands of a website provider when a third party (e.g. the internet access provider) has access to additional information that would enable identification of the Internet user.
After 4 years of negotiation, today the European Parliament adopted the General Data Protection Regulation (“GDPR“). In doing so, it signaled the end of the EU approval process and put businesses on alert that they now have two years to prepare for compliance.
The finalization of the GDPR has implications not only in the EU but globally. Businesses around the world that wish to operate in the EU, provide services and goods to residents in the EU, or monitor the behavior of residents in the EU, will need to comply with the new laws.
The GDPR builds on existing EU privacy laws but includes significant changes which increase the protections already afforded to personal data.
Bad news for companies relying on transatlantic data flows as, once again, the transfer of personal data from Europe to the United States is called into question by the Article 29 Working Party (the “Working Party”), an influential committee of the EU privacy regulators. Ever since the EU-U.S. Safe Harbor Framework was declared invalid by the Court of Justice of the European Union in October 2015, companies have had to find alternative ways to legally transfer personal data. On 29 February 2016, the EU Commission proposed the “EU-U.S. Privacy Shield” as a replacement to the Safe Harbor Framework and a potential solution.
On 29 February 2016 the European Commission issued the legal texts of the EU-U.S Privacy Shield which aims to replace the defunct EU-U.S Safe Harbor Framework as a legitimate mechanism for transferring personal data from the EU to the U.S.
In contrast to its predecessor, the Privacy Shield contains commitments from US government in relation to controls on access to personal data by public authorities. This is an aspect of the new scheme which aims to address the jurisprudence of the Court of Justice of the European Union and criticisms of the previous Safe Harbor Framework.