Data Transfer

10 German Data Privacy Supervisory Authorities Investigating Potential Unlawful International Data Transfers

German Data Privacy Supervisory Authorities Investigating Potential Unalwful International Data Transfers Global Data Transfer Map

According to a press release of the Data Protection Supervisory Authority in the Land Mecklenburg Vorpommern of November 3, German supervisory authorities have randomly selected 500 companies in Germany and sent them requests for information on their international data transfers. The German supervisory authorities are undertaking this coordinated action in order to increase awareness among companies of the need to ensure data privacy compliance of international data transfers.

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EU-U.S. Privacy Shield: Companies Can Now Certify

Privacy Shield

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.

Background:

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.

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EU-U.S. Privacy Shield launched by European Commission

EU-US Privacy Shield

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.

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EU-U.S. Privacy Shield Approved by EU Member States

safe harbor

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.

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A Shifting Cybersecurity Landscape in the European Union

EU data privacy

Orrick Attorneys Aravind Swaminathan, Kolvin Stone and Christian Schröder recently discussed how impending changes to EU data privacy laws will fundamentally change how European companies respond in the face of a cyber attack or data breach.  The article examines the cyber threat landscape and suggests how EU companies should assemble the right individuals into an incident response team for dealing with a data breach.  Drawing on their experience managing client data breaches in the United States, the authors provide concrete strategies for EU companies to deal with a data breach—before, during, and after the event.  For more on how to prepare for the impending changes to EU data privacy laws, click here.

Data transfers in limbo – U.S. companies face fines by German data protection authorities

international data transfers

While EU regulators determine whether to adopt a new agreement for transfers of personal data from Europe to the United States to replace the invalid EU-U.S. Safe Harbor Framework, German data protection authorities have not been idly twiddling their thumbs.

Hamburg’s data protection commissioner, the head of one of 16 Federal German data protection authorities (“DPA”), announced in February that his agency is investigating Hamburg-based subsidiaries of large U.S. companies engaging in transfers of personal data of EU citizens to the U.S.

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EU-US Privacy Shield may not be up after all

data privacy

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.

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EU-U.S. Privacy Shield is Go…nearly

Privacy Shield

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.

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Safe Harbor 2.0: Political Agreement Reached – The EU-US Privacy Shield

Safe Harbor

The European Commission has announced that it has reached a deal to replace the EU-US Safe Harbor framework that was declared invalid last year by the Court of Justice of the European Union (“ECJ”).  Heralded as the EU-US Privacy Shield (and colloquially referred to as, “Safe Harbor 2.0”), the framework should provide companies with clearer direction on safe transatlantic data transfer.

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EU Commission to Update Decisions Authorising Personal Data Transfers to Certain Countries Outside the EU

international

Last Friday (6 November 2015) the EU Commission issued a communication on the transfer of personal data from the EU to the US under the Data Protection Directive following the judgment by the Court of Justice in the Schrems case.

In addition to providing some welcome support for the use of data transfer mechanisms such as Model Clauses and BCRs, the communication also contains an important statement from the Commission that it intends to update the decisions it has previously made authorising personal data transfers to certain countries outside of the EU.

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