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EU-US data exchange: EU Commission expects ECJ-Placet on Privacy Shield 2.0

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According to the Brussels executive, the US President’s decree on the planned EU-US data protection framework creates a “permanent and reliable legal basis”.

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In the third attempt, there will still be something with an agreement on the fundamental rights-compliant exchange of personal data between the EU and the USA. At least that’s what the EU Commission is assuming after US President Joe Biden officially set out in a decree on Friday how the promised “unprecedented” surveillance reform in the United States should work.

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The new implementing regulation and related rules “introduce a new two-tier redress mechanism with independent and binding powers,” the Commission explains in a question-and-answer list. Part of it is a “new data protection review court”.

The Brussels government institution speaks of “significant improvements compared to the mechanism that existed under the Privacy Shield”. At that time, EU citizens could only turn to an ombudsperson “who was part of the US State Department and did not have similar investigative or binding decision-making powers.” The executive authority is therefore confident that the European Court of Justice (ECJ) will not again overturn the new transatlantic data protection framework announced in March.

In the “Schrems II” judgment of summer 2020, the Luxembourg judges again found that US laws such as the Foreign Intelligence Surveillance Act (FISA) or the Cloud Act enable mass surveillance by security authorities such as the NSA and the data protection standard in the United States therefore not the same as in the EU.

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The IT association Bitkom also rated Biden’s order as “clear progress in securing international data transfers”. It is now a matter of “quickly converting the political will for a solution into a resilient legal regulation that will also stand up to future judicial review”. The “existing data blockade” must finally be resolved.

The eco Association of the Internet Industry made a similar statement. According to him, the US side is at least trying to take the ECJ requirements into account. Until the Privacy Shield 2.0 is expected to come into force and take effect in spring 2023, the data protection authorities should recognize the solution that is now available and “absolutely refrain from fine proceedings or any transmission bans at companies”. In particular, there is currently a risk of a decision by the Irish data protection authority and the European Committee of Supervisory Bodies, which would prohibit Meta or Facebook from transferring personal data.

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Max Schrems, who had already brought down the previous “Safe Harbor” agreement before the ECJ, assumes that the “executive order” is not sufficient and will fail again due to the ECJ requirements: The announced “court” is only an administrative body, the definitions of “reasonable” mass surveillance diverged widely. In addition, US companies would still not have to comply with even basic provisions of the General Data Protection Regulation (GDPR) under the agreement.

The order is “a positive but insufficient step,” said the civil rights organization Access Now. It does not guarantee that a future agreement between the EU and the USA on data transfer will effectively protect human rights. Washington must finally enshrine the rights to privacy and data protection in federal laws and guarantee foreigners a comprehensive right to legal aid.

“Questions remain about the scope of permissible surveillance,” complained the US-based Center for Democracy & Technology (CDT). A thorough FISA reform is also necessary. The Greens Konstantin von Notz and Tobias Bacherle welcomed “that the access rights of the US authorities to personal data should be further restricted”. Now “it is necessary to analyze very carefully whether the announced steps stand up to the clear legal requirements of the highest courts”.


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