Safe Harbour 2.0: Where are we now?
There have been intense negotiations between EU and US officials on an "Umbrella Agreement" or "Safe Harbour 2.0" following the European Court of Justice's Schrems decision last October. Progress was reported but no political solution has yet been reached.
Europe is continuing to call for guarantees in relation to the application of the principles of necessity and proportionality when companies request data and effective judicial control of public authorities' access to data for national security, law enforcement a public interest purposes. Adoption of the Judicial Redress Act by the US Congress is reported to be a precondition to the successful conclusion of the negotiations. The Judicial Redress Act is intended to enable EU citizens to benefit from the same rights as US citizens under the US Privacy Act 1974.
Discussions between EU and US official are reported to be continuing on the margins of the World Economic Forum in Davos this week. In the absence of a political solution by the end of this month, EU data protection authorities have stated that they will "take all necessary and appropriate actions, which may include coordinated enforcement actions".
The Working Party is scheduled to meet on 2 February to adopt a common position on the grounds on which transfers of personal data from the EU to the US can continue. It is unclear whether or not there will be a politically agreed "Safe Harbour 2.0" for the Working Party to consider. Even in the absence of a "Safe Harbour 2.0", the common position will be welcomed as it ought, at a minimum, clarify the Working Party's position on the validity of Model Contracts, binding corporate rules and other transfer tools in the post-Schrems era. Many businesses will be keeping a close on eye on the outcome of the political developments and the Working Party's position as they eagerly await a resolution to the post-Schrems transatlantic data flows issues.
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This article was originally published on our IP & Technology law blog on 20 January 2016.