The Swiss-U.S. Privacy Shield Framework is approved

The Swiss-U.S. Privacy Shield Framework (the “Framework”) made its debut on January 12, 2017 without much fanfare when Swiss federal councillor Johann Schneider-Ammann announced the Framework’s approval as a valid legal mechanism to comply with Swiss requirements for transferring personal data from Switzerland to the United States. The Framework, designed by the U.S. Department of Commerce (the “DOC”) and the Swiss government to align with the EU-U.S. Privacy Shield, will immediately replace the U.S.-Swiss Safe Harbor. The DOC will begin accepting self-certifications starting April 12, 2017 to give organizations ample time to review the new Framework’s principles and compliance requirements. For more of Scherzer International’s coverage of the EU-U.S. Privacy Shield, click here.

February 2nd, 2017|Business Transactions, European Union, International, Legislation, Privacy, Risk Management|

European Commission Adopts EU-US Privacy Shield as Replacement for EU-US Safe Harbor Framework

What this is about 
On July 12, 2016, the European Commission formally adopted the EU-US Privacy Shield (the “Privacy Shield”) which will provide organizations a mechanism to comply with EU data protection requirements when transferring personal data from the EU to the US. This new privacy framework reflects the requirements set out by the European Court of Justice in its October 2015 landmark decision in Maximillian Schrems vs. Data Protection Commissioner, which declared the EU-US Safe Harbor privacy regime invalid.
Privacy Shield overview: The framework provides a set of robust and enforceable protections for the personal data of EU individuals, as well as transparency regarding the use of such data by participating companies, strong US government oversight, and increased cooperation with EU data protection authorities. For more information, see US Department of Commerce (“DOC”) factsheet and FAQs.
Joining the program: 
The DOC will start accepting self-certifications beginning August 1, 2016. Organizations must identify and register with an independent dispute resolution provider prior to submitting their self-certification.
About self-certification:
The decision to participate in the program is voluntary; however, once an organization publicly commits to comply with the framework’s principles through self-certification, that commitment is enforceable under US law by the relevant authority–either the US Federal Trade Commission or the Department of Transportation. To receive the Privacy Shield’s benefits, an organization must self-certify annually to the DOC that it agrees to adhere to the framework’s requirements, based on the privacy principles that include notice, choice, access, and transfer accountability. See the DOC’s guide for more information about participation and compliance requirements.

Disclaimer: This communication is for general informational purposes only, and does not constitute legal advice. No recipient should act, or refrain from acting, on the basis of any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

For further information, please contact us at 1-866-723-2287.
July 14th, 2016|Business Transactions, European Union, Security|

The EU-US Privacy Shield Framework text is now available

U.S. Secretary of Commerce Penny Pritzker released a statement regarding the historic agreement, noting that the “EU-US Privacy Shield is a tremendous victory for privacy, individuals, and businesses on both sides of the Atlantic.”

The EU-US Privacy Shield Framework (the “Framework”) was designed by the U.S. Department of Commerce (the “DOC”) and European Commission to provide companies on both sides of the Atlantic with a mechanism to comply with EU data protection requirements when transferring personal data from the European Union to the United States in support of transatlantic commerce.

The Framework provides robust and enforceable protections for the personal data of EU individuals, mandating transparency for participating companies, strong U.S. government oversight, and increased cooperation with EU data protection authorities. Offering EU individuals access to multiple avenues to address concerns regarding participants’ compliance and a free dispute resolution, the Framework makes it easier for EU individuals to understand and exercise their rights.

The European Commission proposed that the Framework be deemed adequate to enable data transfers under EU law, which is now in the approval process. Once an adequacy determination is made, the DOC will begin accepting certifications under the Framework. Similar to the certification process of the now invalid Safe Harbor, if a U.S. based-company wishes to join the Framework, it will be required to self-certify to the DOC and publicly commit to comply with the Framework’s requirements. While joining the Framework will be voluntary, once an eligible company certifies compliance, the commitment will become enforceable under U.S. law.

Read the fact-sheet about the EU-US Privacy Shield Framework here.

Read the full text of the EU-US Privacy Shield Framework here.

February 29th, 2016|European Union|

Three companies to be fined for relying on invalidated Safe Harbor to transfer data from the EU

Fortune reported that Hamburg, Germany’s data protection commissioner, Johannes Caspar, is taking five unspecified global companies to task for continuing to transfer EU data to the US after the Safe Harbor ruling made it illegal, The Hamburg data protection authority is preparing to fine three companies for relying on the Safe Harbor privacy framework as the legal basis for their trans-Atlantic data transfers, the report states. “Two other firms are also under investigation” according to the report.  Caspar refused to disclose the names of the companies for legal reasons, but said they are “large international companies” and “subsidiaries of US-based global corporates.”

February 29th, 2016|European Union, International|

Judicial Redress Act of 2015 signed into law

On February 24, 2016, President Obama signed the Judicial Redress Act of 2015 (“the Act”) into law, a major step toward formalizing the recently announced privacy framework, the EU-U.S. Privacy Shield, which will replace the Safe Harbor program that was declared invalid by the European Court of Justice in October 2015. The Act’s intent, as explained by House Judiciary Committee Chairman Bob Goodlatte (R-VA), is to reestablish the United States’ credibility with the European Union following the highly-publicized leaks of classified information in the recent years.

The Act extends to the citizens of EU countries that permit commercial transfers of personal data [to the United States] similar rights to those enjoyed by US citizens under the Privacy Act of 1974, which established a code of fair information practices that govern the federal government’s collection, maintenance, use, and dissemination of information about individuals. The citizens of these EU countries will now be allowed to sue the United States for unlawful disclosure of their personal information obtained in connection with international law enforcement efforts. Under current law, only US citizens and legal residents can bring such claims against the federal government.

Read the text of the Act here.

February 28th, 2016|European Union, Legislation|

The EU-US Privacy Shield for transatlantic data transfers makes its debut

Announced on February 2, 2016 by the European Commission, the new political agreement called the Privacy Shield, reflects the requirements set out by the European Court of Justice in its ruling on October 6, 2015, which declared the old Safe Harbor privacy framework invalid.

The new arrangement calls for strong data privacy and security measures and robust enforcement of U.S. companies handling Europeans’ personal data, clear safeguards and transparency for U.S. government access, and effective protection of EU citizens’ rights with several redress possibilities.

The College of Commissioners is now preparing an adequacy decision regarding the Privacy Shield–the Article 29 Working Party (the “Working Party”), a data protection authority, is requesting that all documents be provided  by the end of February 2016 so that it can complete its assessment of the new framework at a special plenary meeting shortly thereafter. In a statement issued February 3, 2016, the Working Party provided some assurances that during this period of transition, transfer mechanisms, such as standard contractual clauses (which are data transfer agreements approved by the Commission) and binding corporate rules (generally described as internal data processing rules binding on all members of a global corporate group) to permit intragroup transfers of personal data) can still be used as transfer tools to the U.S.

Organizations that certified compliance under the Safe Harbor regime must continue to meet their obligations in connection with previously transferred personal data to avoid enforcement actions by the Commerce Department or the Federal Trade Commission, which consider the Safe Harbor as still binding. In the interim, implementing the above-mentioned clauses should also be considered to the extent they supplement the Safe Harbor platform. It appears that the Privacy Shield, at least initially, will rely significantly on the Safe Harbor framework, and it is likely that the Department of Commerce will offer a means for Safe Harbor certified organizations to transition to the Privacy Shield.

February 24th, 2016|Educational Series, European Union, Guidence|

New US-EU Safe Harbor agreement may be around the corner

Various sources report that US and EU representatives met on December 17, 2015 to hash out an agreement that would replace the recently invalidated Safe Harbor privacy framework. The two governments aim to have a replacement framework in place by January, says EU Justice Commissioner Vera Jourová. One of the main goals of the new program is to allow EU citizens’ grievances to be filed directly with their national privacy regulator.

As reported in our client alert and blogs, in October 2015, judges from the European Court of Justice issued a judgment striking down a 15-year old agreement, known as the Safe Harbor framework, which allowed US and European organizations to freely move personal data between the two regions as long as the US ensured an adequate level of data protection at the company and certified that it would abide by the seven EU data privacy principles regarding notice, choice, onward transfer, security, data integrity, access, and enforcement.  The invalidation ruling impacted nearly 4,000 businesses that relied on the Safe Harbor framework to transfer data between the US and Europe and requires all businesses to revaluate their compliance with European data privacy and security standards.

December 22nd, 2015|European Union, Legislation|