Sorting out the legalities of transferring data from the EU to the U.S. — or to the rest of the world for that matter — has become an intense focus of attention in recent months. The invalidity of the adequacy status of Safe Harbor by Europe's top court opened a massive compliance hole for multinationals, which, in some cases at least, may take years to fill. This has led to a very uncertain situation that is threatening the viability of today's essential data flows.
Against this background, the much-awaited publication of the EU-U.S. Privacy Shield framework gives us some hope about a possible resolution of this challenge.
Following the release of the Privacy Shield documentation, there has been an overwhelming demand for a legal analysis of the framework that may provide some clues as to its long-term future and, crucially, its robustness as a valid legal mechanism. From a practical perspective, a key assessment is the one currently being performed by the Article 29 Working Party, which is due to reveal its verdict in mid-April. The EU privacy regulators' analysis is particularly important because it will be extremely rigorous – and likely to err on the side of caution – in determining how the Privacy Shield addresses the specific weaknesses of its predecessor.
But as important as this detailed legal analysis may be, it is equally critical to look at the bigger picture and to understand what the Privacy Shield brings to the table of global privacy. Here are some pointers that are worth considering:
A global extension of European privacy rights and standards – Something that should be recognised is the value of a programme that introduces the European way of thinking about privacy to leading multinationals. That was probably the most valuable aspect of Safe Harbor and a contribution that the Privacy Shield will be extending. Its impact will not be restricted to the U.S. either, given the global scale at which the framework will be implemented in practice by many companies.
Impact on government access to data – Irrespective of how we got here in the first place, it is undeniable that the Privacy Shield discussions have made the U.S. government think long and hard about access to data and how to make that compatible, not only with their own constitutional values, but with the European approach to the right to privacy and data protection. The political efforts by the U.S. government to get this right may not be entirely visible, but will be felt.
The power of the judiciary – If there was ever any doubt, one of the legacies of this saga has been the confirmation of the role of the judiciary as ultimate arbiter between the citizen and the state. This is something that should not be underestimated. It should be respected and valued as a core principle of democracy and the rule of law.
Multi-party oversight, enforcement and redress – One of the big novelties of the Privacy Shield is its intricate system of oversight, enforcement and redress, which involves a number of overlapping institutions with different levels of competence. This reflects the complexities of this issue and shows us a pattern for the future. Time will tell how workable this is but, clearly, efforts have been devoted to create a credible system that meets the high standards required.
Ongoing communication and collaboration – Ultimately, the success of the Privacy Shield as an effective framework will rely on the ability of those involved in it to make it work. In fact, the framework has been designed to foster communication and collaboration by policy makers and regulators across the Atlantic and that, in itself, is a massive win and a foundation for the future.
We will know soon enough what the European regulators truly think of the Privacy Shield, but let's hope that as part of their assessment exercise they also consider this wider perspective and, above all, the ongoing need to think practically about privacy protection in the context of data globalisation.
Top image courtesy of the European Commission
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