firmer foundations engineered in from the ground up. Te Commission itself breaks the Shield down into four distinct and
complimentary parts: l Commercial Sector – the Privacy Shield will implement stronger obligations on US companies to protect EU personal data, accompanied by stronger monitoring and enforcement via oversight mechanisms, sanctions and tightened conditions for onward transfers to companies' partners.
l US Government – unlike before, the US government has provided written assurances that it will employ and maintain clear safeguards and transparency obligations. Te assurances state, for example, that any access of public authorities for national security purposes will be subject to clear limitations, safeguards and oversight mechanisms.
l Redress - several new mechanisms will be on offer to EU citizens seeking redress if they feel that their private data has been misused. Tey will be able to apply directly to the company in question, in which case the company must reply within 45 days; they will have access to free alternative dispute resolution mechanisms, available via telephone or video conference; they will have access to national data protection authorities (‘DPAs’), which will work with the US Department of Commerce and FTC to resolve the complaint; and they will ultimately be able to apply to the newly formed Privacy Shield Panel, via an arbitration mechanism, in an attempt to ensure an enforceable decision.
l Monitoring – the Joint Annual Review will monitor the functioning of the Shield, including, crucially, access to data for law enforcement or national security reasons. Te Commission and the US Department of Commerce will conduct the review, with assistance from US national intelligence experts and European DPAs. Te Commission
will also hold an annual privacy summit and issue a public report to the European Parliament and the Council. Te overarching question is whether these
measures, working together, will offer the required level of protection for data emanating from the EAA, particularly when issues of national security come to the fore. Under Safe Harbor, the chief concern was that national security was utilised by US authorities as a kind of ‘get out of jail free card’, overriding all other concerns and allowing virtually untrammelled access to information. Te ultimate arbiter in the case of the shield is
the Commission and they, initially, seemed satisfied with the safeguards being offered. Tese safeguards include Presidential Policy Directive 28, under which the bulk collection of data for intelligence operations will be confined
to six specific national security purposes: l To detect and counter threats from espionage l To combat terrorism l To detect or combat weapons of mass destruction
l To detect or combat threats to the Armed Forces
l To detect or combat transnational criminal threats Following agreement on the basic principles
and mechanisms of the Privacy Shield being reached in February of this year, the proposed solutions were examined by the Article 29 Working Party, a body made up national DPA’s. On 13th April the working party published its opinion of the Privacy Shield, welcoming the significant improvement which the Shield represents when compared to the system of Safe Harbor, and in particular praising ‘the insertion of key definitions, the mechanisms set up to ensure the oversight of the Privacy Shield list and the now mandatory external and internal reviews of compliance’. Tese positive developments aside, however,
The advice and protections set out in the Shield lack consistency, while putting forward specific concerns around factors such as the absence of data retention principles, the lack of protection against automated decisions based on automated processing, and a lack of clarity on the ‘limitation of purpose’.
the Working Party did register several concerns with the mechanism(s) of the Shield as currently set out, lamenting, in general terms, the fact that the principles of the Shield are set out in a manner – divided between a plethora of documents and annexes – which creates ‘an overall lack of clarity’. It was also pointed out that the advice and protections set out in the Shield lack consistency, while putting forward specific concerns around factors such as the absence of data retention principles, the lack of protection against automated decisions based on automated processing, and a lack of clarity on the ‘limitation of purpose’. Tis last is the principle, a long time plank of data privacy protection, which states that data must only be collected for specific, legitimate and specified purposes, and that, having been collected, it cannot then be processed in a manner which is incompatible with these original purposes. In summary, the Working Party stated that ‘it
urges the Commission to resolve these concerns and provide the requested clarifications in order to improve the draft adequacy decision and
NEWSWIRE / INTERACTIVE /
247.COMP63
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