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
Recently, the EU’s Article 29 Working Party (”Working Party”) held a plenary meeting to discuss, among other things, the implementation of the EU General Data Protection Regulation (“GDPR”) and the EU-U.S. Privacy Shield. As well as adopting its first Joint Annual Review Report on the Privacy Shield, the Working Party has been working on a number of documents that offer review and/or guidance on the GDPR, including:
- guidelines on (1) consent and transparency, (2) data protection certifications, and (3) derogations for personal data transfers under the GDPR;
- updated “referentials” on adequacy and binding corporate rules for data controllers and processors; and
- tools for cooperation between data protection authorities on data breach notifications.
As we previously reported, this October, the EU Commission released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework. On November 28, 2017, the Article 29 Data Protection Working Party (the “Working Party”) adopted an opinion on the review (the “Opinion”). While the Opinion notes that the Working Party “welcomes the various efforts made by US authorities to set up a comprehensive procedural framework to support the operation of the Privacy Shield,” the Opinion also identifies some remaining concerns and recommendations with respect to both the commercial and national security aspects of the Privacy Shield framework. The Opinion also indicates that, if the EU and U.S. do not, within specified time frames, adequately address the Working Party’s concerns about the Privacy Shield, the Working Party may bring legal action to challenge the Privacy Shield’s validity.
On October 18, 2017, the EU Commission (“Commission”) released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework (collectively, the “Report”). The Report states that the Privacy Shield framework continues to ensure an adequate level of protection for personal data that is transferred from the EU to the U.S. It also indicates that U.S. authorities have put in place the necessary structures and procedures to ensure the proper functioning of the Privacy Shield, including by providing new redress possibilities for EU individuals and instituting appropriate safeguards regarding government access to personal data. The Report also states that Privacy Shield-related complaint-handling and enforcement procedures have been properly established.
On October 3, 2017, the Irish High Court referred a legal challenge to the validity of the EU Standard Contractual Clauses (“SCCs”) to the Court of Justice of the European Union (“CJEU”) for resolution. Max Schrems, who had previously successfully challenged the validity of the now defunct U.S.-EU Safe Harbor Program in the Schrems case, had brought a similar claim in relation to the SCCs, and had requested that the Irish Data Protection Commissioner (“DPC”) declare that the SCCs do not provide sufficient protection when personal data is transferred outside the EU to the US and thus are invalid. The Irish DPC declined to make such a ruling, but instead referred the case to the Irish High Court, and requested that the case be referred to the CJEU for a final decision on the validity of the SCCs.
Hunton & Williams LLP is pleased to announce that Lisa Sotto, chair of the firm’s top-ranked Global Privacy and Cybersecurity practice and managing partner of the firm’s New York office, has been selected as an arbitrator in connection with the EU-U.S. Privacy Shield Framework Binding Arbitration Program.
On September 18, 2017, the European Commission (“Commission”) and U.S. Department of Commerce (“Department”) kicked off their first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”). To aid in the review, the Department invited a few industry leaders, including Hunton & Williams’ partner Lisa J. Sotto, who chairs the firm’s Global Privacy and Cybersecurity practice and the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, to speak about their experiences during the first year of the Privacy Shield.
On September 8, 2017, the Federal Trade Commission announced that it had settled charges against three companies for misleading consumers about their participation in the Privacy Shield framework. The FTC alleged that Decusoft, LLC, Tru Communication, Inc. and Md7, LLC violated the FTC Act by falsely claiming that they were certified to the EU-U.S. Privacy Shield, when in fact the three companies never completed the Privacy Shield certification process. In addition, Decusoft falsely claimed to be certified to the Swiss-U.S. Privacy Shield. This marks the first enforcement action brought by the FTC pursuant to the Privacy Shield.
On June 2, 2017, in preparation for the first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) framework, the European Commission has sent questionnaires to trade associations and other groups, including the Centre for Information Policy Leadership at Hunton & Williams LLP, to seek information from their Privacy Shield-certified members on the experiences of such organizations during the first year of the Privacy Shield. The EU Commission intends to use the questionnaire responses to inform the annual review of the function, implementation, supervision and enforcement of the Privacy Shield. Continue Reading EU Commission Issues Questionnaire in Preparation for Annual Review of Privacy Shield