On April 13, 2016, the Article 29 Working Party (WP29), an influential group of European data protection authorities, issued a non-binding opinion that criticized certain elements of the fledgling Privacy Shield framework. Although the Privacy Shield remains in limbo at this time, a flurry of speculation and Shield-adjacent legal maneuvers have colored the landscape and heightened concerns about its long-term viability.

The Privacy Shield was proposed in early February as a replacement for the EU-U.S. Safe Harbor framework following the Safe Harbor’s demise in October 2015. The invalidation of the Safe Harbor left thousands of companies in search of alternatives to meet their cross-border data transfer needs, and introduced new uncertainty regarding the long-term sustainability of other mechanisms such as binding corporate rules and model clauses.

While declaring the Privacy Shield to be a significant improvement over the Safe Harbor framework, the WP29 found that the European Commission’s draft adequacy decision concerning the Privacy Shield lacked clarity and was inconsistent. The opinion urged the Commission to clarify the text and to evaluate its provisions in light of the recently approved EU General Data Protection Regulation (GDPR).

Below we provide an overview of the proposed Privacy Shield, including a brief history, a summary of developments since the WP29’s opinion was issued in April, and what to expect in the coming weeks and months.

Background

Pursuant to European law, certain conditions must be met to lawfully transfer European citizens’ personal data outside of the EU. Specifically, the Data Protection Directive of 1995 (as well as the forthcoming GDPR) prohibits transfer of EU citizens’ personal data outside of the EU unless the recipient country ensures an “adequate level of protection” for the data. The U.S. has never been deemed adequate for these purposes, due in large part to the “patchwork” nature of state and federal privacy and security laws and lack of a comprehensive data protection framework.

In 2000, to address the concerns of companies doing business across the Atlantic, the U.S. Department of Commerce and the European Commission created the Safe Harbor framework, a self-certification mechanism by which a company could lawfully transfer personal data to the U.S. from the EU. Over the years, various constituencies expressed concerns about the actual level of data protection provided by the Safe Harbor; these concerns were amplified in 2013 following revelations regarding the U.S. government’s surveillance activities.

In this context, in June 2014, an Austrian student named Max Schrems lodged a complaint with the Irish Data Protection Authority regarding Facebook’s transfer of his personal data from its Irish subsidiary to servers located in the United States. This complaint ultimately led to the October 6, 2015 decision by the Court of Justice of the European Union (CJEU), which held that the Safe Harbor framework was invalid, citing flaws in the European Commission’s original adequacy opinion that had approved the Safe Harbor.

Following the Schrems decision, the WP29 indicated that it would allow EU and U.S. authorities until the end of January 2016 to come up with a replacement data transfer mechanism before pursuing enforcement actions against companies that had relied on the Safe Harbor. In an effort to move the ball forward in the United States, Congress passed the Judicial Redress Act, which was signed into law on February 24, 2016. The Act extends certain rights to non-U.S. citizens under the Privacy Act of 1974 with respect to unlawful disclosure of their personal information, as well as the right to access and correct U.S. government records about themselves. The Act’s passage addressed some of the CJEU’s concerns expressed in the Schrems decision regarding the lack of legal recourse for EU citizens whose personal data may be collected by U.S. government agencies, but it was generally viewed as a first step down a longer road.

Privacy Shield: Key Components

On February 2, 2016, European and U.S. authorities announced the proposed Privacy Shield, a highly anticipated “replacement” for the invalidated Safe Harbor framework. As with the Safe Harbor framework, organizations seeking to avail themselves of this data transfer mechanism in order to move personal data from the EU to the U.S. would be required to self-certify their compliance to the U.S. Department of Commerce, and then recertify on an annual basis to maintain their status. Below we have outlined some of the key elements of the Privacy Shield, which is organized according to seven privacy principles and imposes a number of new, and more onerous, obligations on participating entities.

Notice – Specific Privacy Policy Provisions. A self-certifying organization will be required to address the following 13 points in its privacy policy or other notice to individuals regarding its privacy practices:

  • The organization’s participation in the Privacy Shield (along with the URL or a link to the posted list of all participating organizations)
  • The types of personal data collected (and any subsidiaries also participating in the Privacy Shield)
  • The organization’s commitment to apply the Privacy Shield Principles to all personal data received from the EU
  • The purposes for which the organization collects and uses personal data about individuals
  • How to contact the organization with inquiries or complaints (including relevant establishments in the EU that can respond to such inquiries or complaints)
  • The third parties to which the organization discloses personal data it collects, and the purposes for such disclosure(s)
  • The right of individuals to access their personal data
  • The choices the organization offers individuals for limiting the use and disclosure of their personal data
  • The independent dispute resolution body designated to address complaints and provide appropriate recourse (free of charge) to individuals
  • That the organization is subject to the investigatory and enforcement powers of the FTC, the Department of Transportation, or another authorized statutory body in the U.S.
  • That individuals may, under certain conditions, invoke binding arbitration
  • The requirement to disclose personal data in response to lawful requests by public authorities, including to meet national security or law enforcement requirements
  • The organization’s liability in cases of onward transfers to third parties

Choice. An organization must provide a clear, conspicuous, and readily available mechanism to individuals in the EU to opt out of (1) sharing of their personal data with a third party or (2) use of their personal data for a purpose that is materially different than the purpose(s) for which it was originally collected or subsequently authorized by the individual. Additionally, organizations must obtain affirmative express consent before sharing sensitive information (e.g., about health, race, political affiliation, religion) with a third party, or using such information for a purpose not previously disclosed to the individual. Notably, the Privacy Shield requires organizations to treat as “sensitive” any personal data received from a third party where the third party identifies and treats such personal data as sensitive.

Recourse, Enforcement, and Liability. EU and U.S. officials have made clear that violations of the Privacy Shield Principles would be enforced against both private organizations and government entities. In addition to FTC enforcement, the Privacy Shield contemplates a binding arbitration requirement and an ombudsperson to work with U.S. government officials on resolving complaints related to the U.S. government’s handling of personal data.

  • The FTC has committed to prioritize alleged Privacy Shield violation referrals from EU Member States. It would also prioritize referrals of noncompliance with self-regulatory guidelines relating to the Privacy Shield Framework from privacy self-regulatory organizations and other independent dispute resolution bodies.
  • Organizations would be required to participate in binding arbitration to resolve alleged violations of the Privacy Shield Principles. A Privacy Shield Panel, which would consist of a pool of 20 arbitrators designated by the U.S. Department of Commerce and the European Commission, would have the authority to impose individual-specific, non-monetary equitable relief (such as access, correction, deletion, or return of an individual’s personal data) necessary to remedy the violation.
  • An ombudsperson would be appointed to work closely with appropriate officials from the State Department and other U.S. government agencies to coordinate and ensure appropriate responses to complaints regarding the U.S. government’s use of personal data.

An organization found to be in violation of the Privacy Shield Principles could be ejected from the framework, resulting in a number of negative consequences beyond the inability to continue to transfer personal data from the EU. Perhaps most notably, if disqualified from participation in the Privacy Shield framework, an organization would be obligated to return or delete all EU personal data it had received in the U.S. under the Privacy Shield – a requirement which would likely result in significant financial, administrative, and operational burdens on the organization. Additionally, the noncompliant organization would be removed from the publicly available Privacy Shield List, which could harm the company’s reputation and potentially provoke breaches of contract where the entity had represented to counterparties that it would maintain its Privacy Shield certification as a condition of a given agreement.

The Privacy Shield may also have significant practical implications for U.S. litigation and discovery. Although there are European data protection laws that restrict the disclosure of European citizens’ personal information in discovery, these laws are rarely enforced. And when they are enforced, the producing party typically faces no real consequences if the disclosure otherwise complies with a U.S. court order. If the Privacy Shield is enacted and enforced, U.S. courts may begin to consider the risk of companies’ noncompliance with the Privacy Shield when ordering them to produce documents that may contain European citizens’ personal information.

If the Privacy Shield is enacted, EU and U.S. regulators would convene on an annual basis to review the Privacy Shield framework and assess whether the mechanism continues to meet its stated goals.

The Article 29 Working Party’s Opinion

The WP29’s opinion on the European Commission’s adequacy decision concerning the Privacy Shield focused on assessing the commercial aspects of the decision and on the national security and law enforcement guarantees that would allow government access to personal data.

With respect to commercial transfers of personal data, the WP29 is particularly concerned with the lack of clarity surrounding the implementation of a number of the Privacy Shield Principles. For example:

  • The WP29 has called for greater clarity concerning the rights of individuals to correct or delete personal data where it is inaccurate or collected in violation of the Principles. It also notes that the Privacy Shield framework does not state specifically at what point an organization must provide notice to an individual. The WP29 highlights situations in which a U.S. organization does not directly collect data from the EU data subject, and suggests that notice should be given at the point the data is recorded by the member organization.
  • The WP29 would like to see specifics regarding how and when an individual will be able to opt out of collection of personal data, and more clarity on the circumstances under which an organization’s new use of personal data would be considered “materially different” from existing uses.
  • Onward transfers. The WP29 has expressed concern about onward transfers of personal data from a Privacy Shield-certified organization in the U.S. to a recipient entity in a third country. The WP29 recommends that organizations engaging in onward transfers should “be obliged to assess the mandatory requirements of the third country’s national legislation applicable to the data importer prior to the transfer.” If the organization finds a “risk of substantial adverse effect on the guarantees, obligations, and level of protection provided by the Privacy Shield,” the WP29 calls for requiring the importing organization to promptly notify the EU data controller before carrying out the onward transfer. The WP29 also stated that if the EU data controller knows of an onward transfer to a third party outside of the U.S. before the transfer to the U.S. occurs, the transfer should be considered a direct transfer from the EU to the third country, and the EU Data Protection Directive, rather than the Privacy Shield Principles, should apply. Additionally, the WP29 has called for clarity on onward transfers to data processors (agents), “especially regarding their scope, the limitation of their purpose, and the guarantees” applied to such transfers.
  • Data integrity and purpose limitation. As drafted, the Privacy Shield limits transfer of data to that which is “relevant” to the processing at stake. The WP29 calls for limiting the processing of data to that which is necessary for the processing. It also calls for greater harmony between the Principles, noting, for example, that the Choice principle states that personal data cannot be processed in a way that is “materially different” from the purpose(s) for which it was originally collected or subsequently authorized, while the Purpose Limitation principle limits the transfer of data to that which is “relevant” for the purposes of processing. The WP29 opinion recommends making explicit that an organization “shall not be authorized to process data for a purpose materially different where this purpose is incompatible according to the Purpose Limitation principle.” In other words, it should be made clear that the Choice principle is not an exemption to the Purpose Limitation principle.

With respect to the public security provisions in the Privacy Shield (that would allow for government/law enforcement access to personal data), the WP29 has expressed concern that the Privacy Shield does not prevent “massive and indiscriminate collection of personal data originating from the EU.” The WP29 also is concerned that the powers of the proposed ombudsperson are not well defined, and the position is “not sufficiently independent and is not vested with adequate powers to effectively exercise its duty and does not guarantee a satisfactory remedy in case of disagreement.”

The WP29 has called on the European Commission to address these points and clarify positions in its adequacy decision, specifically recommending that the Commission (1) create a glossary of terms with clear definitions to make sure key data protection provisions are applied consistently, (2) review the decision in light of the forthcoming GDPR, and (3) ensure that the proposed annual joint review of the Privacy Shield actually does occur.

Post-WP29 Opinion

Since the WP29 issued its opinion on the adequacy of the Privacy Shield, stakeholders in both the U.S. and EU have weighed in, expressing a variety of concerns about the path forward. In addition, a recent change by the U.S. Supreme Court to the Federal Rules of Criminal Procedure may further muddy the waters for European authorities wary of law enforcement access to personal data.

  • S. regulators. While recognizing the importance of the WP29’s opinion, U.S. officials have signaled that they do not want to reopen negotiations on the substance of the Privacy Shield. Stefan Selig, U.S. Undersecretary of Commerce for International Trade, expressed that U.S. officials are “very cautious about not upsetting what was a delicate balance that was achieved when we negotiated the original text.”
  • European Parliament Members (MEPs). Since the European Commission published its text of the Privacy Shield agreement, a number of MEPs have argued that the European Parliament should draft a resolution on the Privacy Shield and hold a vote. Although any such resolution would not be binding, it has been reported that many MEPs want to voice their concerns about the Privacy Shield and urge the European Commission to make changes before it becomes official. A spokesperson indicated that a group of MEPs will move to vote on a Privacy Shield resolution during a meeting scheduled for the end of May, but that may come after the Shield has been formally approved.
  • UK regulators. Acknowledging the WP29’s many questions about the Privacy Shield, outgoing UK Information Commissioner Christopher Graham indicated at a recent conference that he believes their questions are reasonable, and he expects the European Court of Justice to ask questions as well. Graham urged U.S. corporations to “encourage the U.S. authorities to get answers to those questions so we can all move on safely.”
  • S. business community. Several U.S. business associations criticized the WP29’s opinion, believing it will lead to a delay in the enactment of the Privacy Shield and continue a “prolonged climate of regulatory uncertainty,” according to Information Technology & Innovation Foundation Vice President Daniel Castro. And though Microsoft has indicated its support for the Privacy Shield, a number of other businesses are said to be “waiting for proof the Privacy Shield is solid.”

In addition, the U.S. Supreme Court’s recent changes to the Federal Rules of Criminal Procedure could hinder approval of the Privacy Shield. Under the newly amended rules, which were published on April 28, 2016, and will take effect on December 1, 2016, federal judges may issue warrants to federal law enforcement agencies to remotely search computers of unknown location if the whereabouts of the media or information at issue has been “concealed through technological means.” This is seen by many as a significant change, as federal judges have been reluctant to issue search warrants on computers outside their jurisdiction. Given that European authorities are already sensitive to U.S. government surveillance and data collection activities, they may well interpret this change to the federal rules as posing yet another potential risk to European citizens’ privacy.

Next Steps

As the WP29’s opinion is non-binding, the European Commission may finalize the Privacy Shield without making changes, or it may revise its adequacy decision to address concerns expressed in the opinion. The next step in the process is obtaining approval for the Privacy Shield from the Article 31 Committee, which is composed of representatives of each of the EU member states and whose opinion has a binding effect. Following the Article 31 Committee’s opinion, the Commission’s adequacy decision must be formally adopted by the College of Commissioners. Notwithstanding the WP29’s opinion, various parties have expressed concerns about altering the Privacy Shield framework given that it has already been heavily negotiated. The Commission has indicated that it intends to take the WP29’s opinion into account when reworking its adequacy decision. Although it remains to be seen how significantly the Privacy Shield will be altered before it is finalized, most scholars and practitioners agree that it is likely to be subject to judicial review almost immediately upon adoption.