On January 22, 2019, the European Data Protection Board (“EDPB”) issued a report on the Second Annual Review of the EU-U.S. Privacy Shield (the “Report”). Although not binding on EU or U.S. authorities, the Report provides guidance to regulators in both jurisdictions regarding implementation of the Privacy Shield and highlights the EDPB’s ongoing concerns with regard to the Privacy Shield. We previously blogged about the European Commission’s report on the second annual review of the Privacy Shield, and the joint statement of the European Commission and Department of Commerce regarding the second annual review.
On December 20, 2018, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to clarify the effect of the UK’s planned withdrawal from the EU on March 29, 2019. The FAQs provide information on the steps Privacy Shield participants must take to receive personal data from the UK in reliance on the Privacy Shield after Brexit.
On December 19, 2018, the European Commission (the “Commission”) issued a press release regarding the publication of the Commission’s second annual review of the functioning of the EU-U.S. Privacy Shield (the “Report”).
On October 19, 2018, European Commissioner for Justice, Consumers and Gender Equality Věra Jourová and U.S. Secretary of Commerce Wilbur Ross issued a joint statement regarding the second annual review of the EU-U.S. Privacy Shield framework, taking place in Brussels beginning October 18. The statement highlights the following: Continue Reading EU and U.S. Regulators Issue Joint Statement on the Status of the Second Annual EU-U.S. Privacy Shield Review
On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies – IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) – over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified. Continue Reading Four Companies Settle FTC Allegations Regarding False EU-U.S. Privacy Shield Certifications
Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:
- Data processors. When responding to individuals seeking to exercise their rights under the Privacy Shield Principles, the FAQs state that a processor should respond pursuant to the instructions of the EU data controller. For example, in order to comply with the Choice Principle, a Privacy Shield-certified organization acting as a processor could, pursuant to the EU controller’s instructions, put individuals in contact with the controller that provides a choice mechanism or offer a choice mechanism directly.
- Onward transfers. The FAQs also provide additional guidance for organizations preparing to come into compliance with the Accountability for Onward Transfer Principle. For example, the FAQs state that organizations may use contracts that fully reflect the requirements of the relevant standard contractual clauses adopted by the European Commission to fulfill the Accountability for Onward Transfer Principle’s contractual requirements.
- CLOUD Act. The FAQs state that the CLOUD Act, which involves data transfers for law enforcement purposes, does not conflict with the Privacy Shield, which is unaffected by the enactment of the law.
View the full Privacy Shield FAQs.
On July 5, 2018, the European Parliament issued a nonbinding resolution (“the Resolution”) that calls on the European Commission to suspend the EU-U.S. Privacy Shield unless U.S. authorities can “fully comply” with the framework by September 1, 2018. The Resolution states that the data transfer mechanism does not provide the adequate level of protection for personal data as required by EU data protection law. The Resolution takes particular aim at potential access to EU residents’ personal data by U.S. national security agencies and law enforcement, citing the passage of the CLOUD Act as having “serious implications for the EU, as it is far-reaching and creates a potential conflict with the EU data protection laws.” Continue Reading European Parliament Calls for Suspension of EU-U.S. Privacy Shield Unless U.S. Can “Fully Comply”
On July 2, 2018, the Federal Trade Commission announced that California company ReadyTech Corporation (“ReadyTech”) agreed to settle FTC allegations that ReadyTech misrepresented it was in the process of being certified as compliant with the EU-U.S. Privacy Shield (“Privacy Shield”) framework for lawfully transferring consumer data from the European Union to the United States. The FTC finalized this settlement on October 17, 2018. Continue Reading California Corporation Settles FTC Complaint Regarding EU-U.S. Privacy Shield Compliance Claim
On March 26, 2018, the U.S. Department of Commerce posted an update on the actions it has taken between January 2017 and March 2018 to support the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”). The update details measures taken in support of commercial and national security issues relating to the Privacy Shield. Continue Reading U.S. Department of Commerce Posts Update of Actions to Support the Privacy Shield Frameworks
What were the hottest privacy and cybersecurity topics for 2017? Our posts on the EU General Data Protection Regulation (“GDPR”), EU-U.S. Privacy Shield, and the U.S. executive order on cybersecurity led the way in 2017. Read our top 10 posts of the year. Continue Reading Privacy and Information Security Law Blog’s Top 10 Posts of 2017