Interactive DATA PRIVACY AND PROTECTION
l Naughty Corner. Companies will be subject to audits, an FTC 'wall of shame', continuing obligations for those who cease to be signatories to Privacy Shield and enforcement actions from the FTC and European Data Protection Authorities (“DPAs”).
CONS Te Elephant in the Room. US authorities have
"promised" there will be clear limitations, safeguards, and oversight mechanisms for access by public authorities for law enforcement and national security purposes. While Europe has welcomed the steps that have been taken towards further transparency, there is ample discontent and skepticism. Many agree that the new framework needs to fully reflect the shared democratic and individual-rights-based values which are present in the Lisbon Treaty and the Charter of Fundamental Rights in the EU and by the US Constitution , but there is widespread disagreement as to the best method to do so.
Scope for Challenge. Trough somewhat gritted teeth, the DPAs have said they will hold off on any challenges for the first year of the Privacy Shield. However, once a year has passed you can bet your bottom dollar that Germany will be first in line behind Schrems to challenge it. Already, the country's equivalent to the US Senate has asked the government to make it possible for its federal and state DPAs to challenge adequacy decisions.
Whilst challenge is important - it comes down (yet again) to balance - a successful challenge to Privacy Shield might also bring down the other mechanisms that companies use to process EU data in the US. After all, if US mass surveillance means the Privacy Shield doesn't protect EU citizens' rights, one could argue the same applies to Model Clauses and Binding Corporate Rules : EU personal data would then be en route to the US without any armour whatsoever.
Te Unknowns. Tere are many, but Brexit is, for the UK, one of the biggest. As far as the British Prime Minister is concerned "Brexit means Brexit", but how the UK will go about transferring data to the US once it breaks from the EU is unclear. It is likely that it will either follow the EU path or negotiate a similar, perhaps “lighter” version of Shield with the US directly.
CONCLUSION Like the Chinese merchant, we do not know
whether the Privacy Shield can sufficiently resist the spear. As discussed, many do not think it is fit for purpose, but the EU is standing strong with shield raised high waiting for ready
P122 NEWSWIRE / INTERACTIVE /
247.COM
You may think that if the Privacy Shield is going to be challenged anyway, what's the point in worrying about complying with it? The simple answer is that if you don’t want to infringe EU data protection law, it's currently the cheapest, easiest and quickest way to comply with EU-US data laws.
challengers. You may think therefore that if the Privacy Shield is going to be challenged on these grounds anyway, what's the point in worrying about complying with it (or checking that your business complies with it)? Te simple answer is that if you don’t want to infringe EU data protection law, it's currently the cheapest, easiest and quickest way to comply with EU-US
data transfer laws. On that note, we leave you with some practical steps you can take:
FOR US COMPANIES HANDLING EU DATA l Check your eligibility - can you sign up to the
Shield?
l If so, your handling of data must be technically and operationally compliant.
l Ensure your privacy policy is Shield- compliant before submitting an application.
l Review both internal and external data contracts and practices.
FOR INDIVIDUALS l Next time you are asked to “click here” to
agree to a Privacy Policy, Terms of Use, Cookies Practice or whatever it may be - have a look to see what the terms say about international data transfer. Are you happy with how your data will be used? Is it reasonable?
l If not, and the organisation is signed up to the Privacy Shield, you have options – use them.
l Information is power, keep an eye on the latest privacy news to stay up to date.
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