Privacy & Information Security Law Blog

On July 10, 2023, the European Commission formally adopted a new adequacy decision on the EU-U.S. Data Privacy Framework (the “Adequacy Decision”). The adoption of this Adequacy Decision follows years of intense negotiations between the EU and the U.S., after the invalidation of the EU-U.S. Privacy Shield by the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

On February 28, 2023, the European Data Protection Board (“EDPB”) issued its Opinion 5/2023 on the European Commission Draft Implementing Decision on the adequate protection of personal data under the EU-US Data Privacy Framework (the “Opinion”). In the Opinion, the EDPB recognized substantial improvements in the proposed EU-U.S. Data Privacy Framework (“DPF”) when compared to Privacy Shield, whilst also stating that a number of aspects of the DPF need to be clarified, developed or further detailed.

On February 14, 2023, in a Draft Motion for a Resolution on the adequacy of the protection afforded by the proposed EU-U.S. Data Privacy Framework (the “Framework”), the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Committee”) urged the European Commission not to adopt adequacy based on the Framework, on the basis that it “fails to create actual equivalence” with the EU in the level of data protection that it provides.

On December 13, 2022, the European Commission launched the process for the adoption of an adequacy decision for the EU-U.S. Data Privacy Framework. If adopted, the long-awaited adequacy decision will provide EU companies transferring personal data to the U.S. with an additional mechanism to legitimize their transfers.

An adequacy decision would foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union (“CJEU”) judgment in the Schrems II case.

On December 12, 2022, at the “POLITICO Live” event presented in cooperation with Hunton Andrews Kurth LLP’s Centre for Information Policy Leadership ("CIPL")—titled “EU-U.S. Data Flows: Game Changer or More Legal Uncertainty?”—featured speakers from both sides of the Atlantic optimistic that the new EU-U.S. Data Privacy Framework will withstand an anticipated legal challenge.

On October 7, 2022, President Biden signed Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities, which provides a new framework for legal data transfers between the European Union and the United States. The legal basis for transatlantic data transfers has been uncertain since 2020, when the European Court of Justice (“ECJ”) declared the previous framework, the EU-U.S. Privacy Shield, invalid under EU law. 

On July 7, 2022, the Irish Data Protection Commission (the “DPC”) sent a draft decision to other EU data protection authorities, proposing to block Meta’s transfers of personal data from the EU to the United States.

On April 7, 2022, the European Data Protection Board (the “EDPB”) released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework (the “Statement”).

On March 25, 2022, the European Commission and United States issued a joint statement announcing an agreement in principle on a new Trans-Atlantic Data Privacy Framework (the “Joint Statement”).

On May 14, 2021, the Irish High Court dismissed Facebook Ireland’s (“Facebook”) challenge to the Irish Data Protection Commissioner’s (“DPC”) investigation into Facebook’s international transfers of personal data.

On April 27, 2021, the Portuguese Data Protection Authority (Comissão Nacional de Proteção de Dados, the “CNPD”) ordered the National Institute of Statistics (the “INE”) to suspend, within 12 hours, any international transfers of personal data to the U.S. or other third countries that have not been recognized as providing an adequate level of data protection.

On March 12, 2021, France’s highest administrative court (the “Conseil d’État”) issued a summary judgment that rejected a request for the suspension of the partnership between the French Ministry of Health and Doctolib, a leading provider of online medical consultations in Europe, for the management of COVID-19 vaccination appointments.

On January 15, 2021, the European Data Protection Board (“EDPB”) and European Data Protection Supervisor (“EDPS”) adopted joint opinions on the draft Standard Contractual Clauses (“SCCs”) released by the European Commission in November 2020, for both international transfers (“International SCCs”) and controller-processor relationships within the EEA (“EEA Controller-Processor SCCs”). 

On January 13, 2021, the FTC announced that fertility-app developer Flo Health, Inc. (“Flo”) agreed to a settlement over allegations that the company shared app users’ health information with third-party data analytics providers despite representations that Flo would keep such information private.

The global privacy and cybersecurity team at Hunton Andrews Kurth has authored multiple chapters of the 2021 Data Protection & Privacy guide by Lexology’s Getting the Deal Through. Partner Aaron P. Simpson and practice chair Lisa J. Sotto served as contributing editors of the ninth edition of the annual guide, which provides summary and analysis in key areas of law, practice and regulation for 150 jurisdictions across the globe.

On December 9, 2020, the Senate Committee on Commerce, Science and Transportation held a hearing on the Invalidation of the EU-U.S. Privacy Shield and the Future of Transatlantic Data Flows. The hearing explored the policy issues that led to the Court of Justice of the European Union’s (“CJEU”) invalidation of the Privacy Shield framework in the Schrems II ruling. The hearing also discussed effects of the CJEU’s decision on U.S. businesses and what steps the U.S. government may take to develop a successor data transfer framework, including comprehensive federal privacy legislation.

On September 24, 2020, the Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) released a new paper (the “Paper”) on the Path Forward for International Data Transfers under the GDPR after the CJEU Schrems II Decision.

The Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) recently published a concept paper titled Why We Need Interstate Privacy Rules for the U.S.

The paper acknowledges the possibility that the U.S. may not implement a comprehensive federal privacy law in the near future, and that instead a growing patchwork of state laws will emerge. It proposes an interstate privacy interoperability code of conduct or certification as a solution to the possibility of inconsistent and disparate privacy requirements across the U.S. The paper outlines the benefits and key features of the code, as well as potential models and sources for its structure and substantive rules, such as the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules (“APEC CBPR”), ISO standards, existing state privacy laws, the EU General Data Protection Regulation (“GDPR”) and key federal privacy proposals. It also discusses the process that could be used to develop the code.

On September 28, 2020, the U.S. Department of Commerce, along with the U.S. Department of Justice and the Office of the Director of National Intelligence, released a White Paper entitled Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II (the “White Paper”). The White Paper outlines privacy safeguards in and updates to the U.S. surveillance provisions flagged by the Court of Justice of the European Union (“CJEU”) in its Schrems II decision. It is intended to serve as a resource for companies transferring personal data from the EU to the U.S. in the wake of the CJEU’s decision overturning the EU-U.S. Privacy Shield. Particularly, it focuses on companies relying on Standard Contractual Clauses (“SCCs”) for data transfers, and provides information to help them determine whether the U.S. ensures adequate privacy protections for companies’ data.

On September 8, 2020, the Swiss Data Protection Authority (the Federal Data Protection and Information Commissioner, “FDPIC”), announced in a position statement that it no longer considers the Swiss-U.S. Privacy Shield adequate for the purposes of transfers of personal data from Switzerland to the U.S. This decision follows the July 2020 ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case, which invalidated the EU-U.S. Privacy Shield for EU-U.S. transfers of personal data. This ruling was considered as part of the annual review of the Swiss-U.S. Privacy Shield Framework by the FDPIC since, as Switzerland is not a member of the EU, it is not bound by the CJEU ruling.

On September 3, 2020, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) of the European Parliament held a meeting to discuss the future of EU-U.S. data flows following the Schrems II judgment of the Court of Justice of the European Union (the “CJEU”). In addition to Members of the European Parliament (“MEPs”), the meeting’s participants included Justice Commissioner Didier Reynders, European Data Protection Board (“EDPB”) Chair Andrea Jelinek and Maximilian Schrems. Importantly, Commissioner Reynders stated during the meeting that the new Standard Contractual Clauses (“SCCs”) might be adopted by the end of 2020, at the earliest.

On August 24, 2020, the Data Protection Authority (“DPA”) of the German federal state of Baden-Württemberg issued guidance on international data transfers following the judgment of the Court of Justice of the European Union (“CJEU”) in the Schrems II case (decision C-311/18 of July 16, 2020). As we previously reported, the judgment of the CJEU invalidated the EU-U.S. Privacy Shield framework and confirmed the ongoing validity of the controller-to-processor EU Standard Contractual Clauses (“SCCs”), subject to an adequacy assessment and, if necessary, additional safeguards to protect the personal data transferred pursuant to the SCCs. The guidance is notable because it is the first substantive guidance from a DPA following the Schrems II judgment (although the guidance is only applicable to companies established in the federal state of Baden-Württemberg).

On August 10, 2020, European Commissioner for Justice Didier Reynders and U.S. Secretary of Commerce Wilbur Ross released a joint press statement (the “Statement”) following the ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

The U.S. Department of Commerce has issued two new sets of FAQs in light of the Court of Justice of the European Union’s (“CJEU’s”) recent decision to invalidate the EU-U.S. Privacy Shield in Schrems II. We previously reported on the Schrems II ruling and its implication for businesses that transfer personal data to the U.S. The new FAQs from the Department of Commerce address the impact of the decision on the EU-U.S. Privacy Shield framework and the Swiss-U.S. Privacy Shield framework.

On July 28, 2020, German supervisory authorities (Datenschutzkonferenz, the “DSK”) issued a statement reiterating the requirement for additional safeguards when organizations rely on Standard Contractual Clauses (“SCCs”) or Binding Corporate Rules (“BCRs”) for the transfer of personal data to third countries in the wake of the Court of Justice of the European Union’s (the “CJEU”) invalidation of the Privacy Shield Framework. In its July 16, 2020 judgment, the CJEU concluded that SCCs issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, subject to the need to assess whether additional safeguards are required depending on the recipient jurisdiction. In this same decision, the CJEU struck down the EU-U.S. Privacy Shield Framework.

On July 24, 2020, the European Data Protection Board (the “EDPB”) published a set of Frequently Asked Questions (the “FAQs”) on the judgment of the Court of Justice of the European Union (the “CJEU”) in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, but it struck down the EU-U.S. Privacy Shield framework. With its FAQs, the EDPB sought to provide responses to some of the many questions organizations are asking in the aftermath of the Schrems II ruling.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) invalidated the EU-U.S. Privacy Shield Framework as part of its judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, but it struck down the Privacy Shield framework on the basis that the limitations on U.S. public authorities’ access to EU personal data were not sufficient for the level of protection in the U.S. to be considered equivalent to that ensured in the EU, and that the framework does not grant EU individuals actionable rights before a body offering guarantees that are substantially equivalent to those required under EU law.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) issued its landmark judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. Unexpectedly, the Court invalidated the EU-U.S. Privacy Shield framework.

On June 30, 2020, the Federal Trade Commission (“FTC”) announced it had entered into a consent agreement (the “Proposed Settlement”) with NTT Global Data Centers Americas, Inc. (“NTT”), a successor in interest to RagingWire Data Centers, Inc. (“RagingWire”), to settle allegations in a November 2019 Administrative Complaint that RagingWire misrepresented its participation in and compliance with the EU-U.S. Privacy Shield Framework (“Privacy Shield”), in violation of the FTC Act.

In one of the most important cases on global data transfers, the Court of Justice of the European Union (“CJEU”) will rule on the validity of the Standard Contractual Clauses (“SCCs”) in the Schrems II case (case C-311/18) on July 16, 2020. Invalidation of the SCCs would leave businesses scrambling to find an alternative data transfer mechanism. But there may be significant practical challenges for businesses even if the SCCs survive.

In a case that has garnered widespread interest, the Court of Justice of the European Union (“CJEU”) will deliver its judgment in the Schrems II case (case C-311/18) on July 16, 2020, determining the validity of the controller–to-processor Standard Contractual Clauses (“SCCs”) as a cross-border data transfer mechanism under the EU General Data Protection Regulation (“GDPR”). If the SCCs are invalidated, the judgment would deliver a significant blow to the numerous businesses that rely on them, leaving many scrambling to find a suitable alternative transfer mechanism. Even if the SCCs survive, they may become more cumbersome to use.

On May 18, 2020, the European Data Protection Board (“EDPB”) released its Annual Report (the “Report”) providing details of the EDPB’s work in 2019. This included publication of guidelines, binding decisions and general guidance on the interpretation of EU data protection law.

The Court of Justice of the European Union (“CJEU”) has announced via its Twitter feed that it will deliver its judgement in the Schrems II case (case C-311/18) on July 16, 2020. This judgement will determine the validity of the Standard Contractual Clauses (“SCCs” or Model Clauses) as a transfer mechanism under the General Data Protection Regulation (“GDPR”). SCCs are relied on by many global companies, including Facebook and Microsoft, for international transfers of EU personal data.

On January 16, 2020, the Federal Trade Commission announced that settlements with five companies of separate allegations that they had falsely claimed certification under the EU-U.S. Privacy Shield framework had been finalized.

On December 19, 2019, the Advocate General of the Court of Justice of the European Union (the “CJEU”) handed down his opinion in the so-called “Schrems II” case (case C-311/18). He recommended that the CJEU uphold the validity of the Standard Contractual Clauses (“SCCs”) as a mechanism for transferring personal data outside of the EU. Given that SCCs are the key data transfer mechanism used by many organizations to transfer personal data outside of the EU, the opinion has far-reaching repercussions and will be welcomed by businesses across the globe.

On December 6, 2019, the Federal Trade Commission announced its Final Order and Opinion in the matter of Cambridge Analytica, LLC, finding that Cambridge Analytica violated the FTC Act’s Section 5 prohibition against “unfair or deceptive acts or practices” when harvesting personal information through its “GSRApp” Facebook application.

On December 3, 2019, the Federal Trade Commission announced that it had reached settlements in four separate Privacy Shield cases. Specifically, the FTC alleged that Click Labs, Inc., Incentive Services, Inc., Global Data Vault, LLC, and TDARX, Inc. each falsely claimed to participate in the EU-U.S. Privacy Shield framework. The FTC also alleged that Click Labs and Incentive Services falsely claimed to participate in the Swiss-U.S. Privacy Shield framework and that Global Data and TDARX continued to claim participation in the EU-U.S. Privacy Shield after their Privacy Shield certifications lapsed. The complaints further alleged that Global Data and TDARX failed to comply with the Privacy Shield framework, including by failing to (1) verify annually that statements about their Privacy Shield practices were accurate, and (2) affirm that they would continue to apply Privacy Shield protections to personal information collected while participating in the program.

On November 19, 2019, the Federal Trade Commission announced that Medable, Inc. (“Medable”) agreed to settle allegations that the company had misrepresented its participation in the EU-U.S. Privacy Shield program. The FTC alleged that, from December 2017 to October 2018, Medable falsely claimed in its online privacy policy that it was a certified participant in the EU-U.S. Privacy Shield framework and adhered to the framework’s principles. According to the complaint, although Medable did initiate an application with the Department of Commerce in December 2017, the company never completed the steps necessary to participate in the framework.

On July 9, 2019, the hearing in the so-called Schrems II case (case C-311/18) took place at the Court of Justice of the European Union (“CJEU”) in Luxembourg. The main parties involved in the proceedings, the Irish Data Protection Commissioner (“Irish DPA”), Facebook Ireland Ltd. and the Austrian activist Max Schrems, presented their arguments to the court. In addition, a number of other stakeholders intervened during the hearing, including representatives of the European Parliament, the European Commission, the European Data Protection Board, several EU Member States (including Austria, France, Germany, Ireland, the Netherlands and the UK) and the U.S. government, as well as a number of industry lobby groups and the Electronic Privacy Information Center.

On June 20, 2019, the Senate confirmed Keith Krach as Under Secretary of State for Economic Growth, Energy, and Environment. The former DocuSign and Ariba CEO, nominated by President Trump in January of 2019, will function as the permanent ombudsperson for the EU-U.S. Privacy Shield agreement as part of his role, addressing complaints related to U.S. protection of EU data.

On June 14, 2019, the Federal Trade Commission announced that it has taken action against a number of companies that allegedly misrepresented their compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, the “Privacy Shield”) and other international privacy agreements.

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) hosted a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers (“SCCs”). More than 30 privacy leaders joined together to discuss the challenges of the current SCCs and provide their insights on the updated versions. Hunton partner David Dumont led the discussion, while CIPL President Bojana Bellamy illuminated CIPL’s work in this area. The session also featured Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers.

On January 22, 2019, the European Data Protection Board (“EDPB”) issued a report on the Second Annual Review of the EU-U.S. Privacy Shield (the “Report”). Although not binding on EU or U.S. authorities, the Report provides guidance to regulators in both jurisdictions regarding implementation of the Privacy Shield and highlights the EDPB’s ongoing concerns with regard to the Privacy Shield. We previously blogged about the European Commission’s report on the second annual review of the Privacy Shield, and the joint statement of the European Commission and Department of Commerce regarding the second annual review.

On December 20, 2018, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to clarify the effect of the UK’s planned withdrawal from the EU on March 29, 2019. The FAQs provide information on the steps Privacy Shield participants must take to receive personal data from the UK in reliance on the Privacy Shield after Brexit.

On December 19, 2018, the European Commission (the “Commission”) issued a press release regarding the publication of the Commission’s second annual review of the functioning of the EU-U.S. Privacy Shield (the “Report”).

On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies - IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) - over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified.

Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:

• Data processors. When ...

On July 5, 2018, the European Parliament issued a nonbinding resolution (“the Resolution”) that calls on the European Commission to suspend the EU-U.S. Privacy Shield unless U.S. authorities can “fully comply” with the framework by September 1, 2018. The Resolution states that the data transfer mechanism does not provide the adequate level of protection for personal data as required by EU data protection law. The Resolution takes particular aim at potential access to EU residents’ personal data by U.S. national security agencies and law enforcement, citing the passage of the CLOUD Act as having “serious implications for the EU, as it is far-reaching and creates a potential conflict with the EU data protection laws.”

On July 2, 2018, the Federal Trade Commission announced that California company ReadyTech Corporation (“ReadyTech”) agreed to settle FTC allegations that ReadyTech misrepresented it was in the process of being certified as compliant with the EU-U.S. Privacy Shield (“Privacy Shield”) framework for lawfully transferring consumer data from the European Union to the United States. The FTC finalized this settlement on October 17, 2018.

On March 26, 2018, the U.S. Department of Commerce posted an update on the actions it has taken between January 2017 and March 2018 to support the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”). The update details measures taken in support of commercial and national security issues relating to the Privacy Shield.

What were the hottest privacy and cybersecurity topics for 2017? Our posts on the EU General Data Protection Regulation (“GDPR”), EU-U.S. Privacy Shield, and the U.S. executive order on cybersecurity led the way in 2017. Read our top 10 posts of the year.

Recently, the EU’s Article 29 Working Party (”Working Party”) held a plenary meeting to discuss, among other things, the implementation of the EU General Data Protection Regulation (“GDPR”) and the EU-U.S. Privacy Shield. As well as adopting its first Joint Annual Review Report on the Privacy Shield, the Working Party has been working on a number of documents that offer review and/or guidance on the GDPR, including:

• guidelines on (1) consent and transparency, (2) data protection certifications, and (3) derogations for personal data transfers under the GDPR;
• updated “referentials” on adequacy and binding corporate rules for data controllers and processors; and
• tools for cooperation between data protection authorities on data breach notifications.

As we previously reported, this October, the EU Commission released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework. On November 28, 2017, the Article 29 Data Protection Working Party (the “Working Party”) adopted an opinion on the review (the “Opinion”). While the Opinion notes that the Working Party “welcomes the various efforts made by US authorities to set up a comprehensive procedural framework to support the operation of the Privacy Shield,” the Opinion also identifies some remaining concerns and ...

On October 18, 2017, the EU Commission (“Commission”) released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework (collectively, the “Report”). The Report states that the Privacy Shield framework continues to ensure an adequate level of protection for personal data that is transferred from the EU to the U.S. It also indicates that U.S. authorities have put in place the necessary structures and procedures to ensure the proper functioning of the Privacy Shield, including by providing new redress possibilities for EU individuals and instituting appropriate safeguards regarding government access to personal data. The Report also states that Privacy Shield-related complaint-handling and enforcement procedures have been properly established.

On October 3, 2017, the Irish High Court referred a legal challenge to the validity of the EU Standard Contractual Clauses (“SCCs”) to the Court of Justice of the European Union (“CJEU”) for resolution. Max Schrems, who had previously successfully challenged the validity of the now defunct U.S.-EU Safe Harbor Program in the Schrems case, had brought a similar claim in relation to the SCCs, and had requested that the Irish Data Protection Commissioner (“DPC”) declare that the SCCs do not provide sufficient protection when personal data is transferred outside the EU to the US and thus are invalid. The Irish DPC declined to make such a ruling, but instead referred the case to the Irish High Court, and requested that the case be referred to the CJEU for a final decision on the validity of the SCCs.

Hunton & Williams LLP is pleased to announce that Lisa Sotto, chair of the firm’s top-ranked Global Privacy and Cybersecurity practice and managing partner of the firm’s New York office, has been selected as an arbitrator in connection with the EU-U.S. Privacy Shield Framework Binding Arbitration Program.

On September 18, 2017, the European Commission (“Commission”) and U.S. Department of Commerce (“Department”) kicked off their first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”).  To aid in the review, the Department invited a few industry leaders, including Hunton & Williams’ partner Lisa J. Sotto, who chairs the firm’s Global Privacy and Cybersecurity practice and the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, to speak about their experiences during the first year of the Privacy Shield.

On September 8, 2017, the Federal Trade Commission announced that it had settled charges against three companies for misleading consumers about their participation in the Privacy Shield framework. The FTC alleged that Decusoft, LLC, Tru Communication, Inc. and Md7, LLC violated the FTC Act by falsely claiming that they were certified to the EU-U.S. Privacy Shield, when in fact the three companies never completed the Privacy Shield certification process. In addition, Decusoft falsely claimed to be certified to the Swiss-U.S. Privacy Shield. This marks the first enforcement action brought by the FTC pursuant to the Privacy Shield.

On June 2, 2017, in preparation for the first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) framework, the European Commission has sent questionnaires to trade associations and other groups, including the Centre for Information Policy Leadership at Hunton & Williams LLP, to seek information from their Privacy Shield-certified members on the experiences of such organizations during the first year of the Privacy Shield. The EU Commission intends to use the questionnaire responses to inform the annual review of the function, implementation, supervision and enforcement of the Privacy Shield.

On May 29, 2017, a high-level EU Commission official and Politico reported that the primary objective of the first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”) is not to obtain more concessions from the U.S. regarding Europeans’ privacy safeguards, but rather to monitor the current U.S. administration’s work and steer U.S. privacy debates to prevent privacy safeguards from deteriorating. On March 31, 2017, the EU Commissioner for Justice, Věra Jourová, announced that the joint review will take place in September 2017.

On March 1, 2017, Hunton & Williams senior consultant attorney Rosemary Jay presented evidence on the data protection reform package and the impact of Brexit to the UK Parliament’s House of Lords EU Home Affairs Sub-Committee meeting. 

On February 21, 2017, Sweet & Maxwell published a Guide to the General Data Protection Regulation, written by Hunton & Williams senior consultant attorney Rosemary Jay. The book was released as a companion to Data Protection Law and Practice.

On February 20, 2017, the Article 29 Working Party (“Working Party”) issued a template complaint form and Rules of Procedure that clarify the role of the EU Data Protection Authorities (“DPAs”) in resolving EU-U.S. Privacy Shield-related (“Privacy Shield”) complaints.

On January 25, 2017, President Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” While the Order is primarily focused on the enforcement of immigration laws in the U.S., Section 14 declares that “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” This provision has sparked a firestorm of controversy in the international privacy community, raising questions regarding the Order’s impact on the Privacy Shield framework, which facilitates lawful transfers of personal data from the EU to the U.S. While political ramifications are certainly plausible from an EU-U.S. perspective, absent further action from the Trump Administration, Section 14 of the Order should not impact the legal viability of the Privacy Shield framework.

On December 15, 2016, the Article 29 Working Party (“Working Party”) issued a press release announcing its December 13, 2016, adoption and release of three sets of guidelines and FAQs on key implementation issues under the EU General Data Protection Regulation (“GDPR”):

The Privacy team at Hunton & Williams has authored several chapters of the recently published 2017 guide to data protection and privacy for Getting the Deal Through. The publication covers data privacy and data protection laws in 26 jurisdictions across the globe. Wim Nauwelaerts, Privacy team partner in the firm’s Brussels office, served as the contributing editor of the guide and co-authored the Belgium chapter and the EU overview.

On December 6, 2016, Hunton & Williams announced the release of the second edition treatise Privacy and Cybersecurity Law Deskbook (Wolters Kluwer Legal & Regulatory U.S.) by lead author Lisa J. Sotto, head of the firm’s Global Privacy and Cybersecurity practice. The Deskbook has become an essential tool for those involved in managing privacy and cybersecurity law issues. “The treatise provides a roadmap to comply with global data protection laws, navigate and comply with state breach notification requirements, and stay informed on emerging legal trends,” said Sotto. Members of the global practice group also contributed to the Deskbook. 

On November 9, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP and AvePoint released the results of a joint global survey launched in May 2016 concerning organizational preparedness for implementing the EU General Data Protection Regulation (“GDPR”). The GDPR replaces Directive 95/46/EC and will become applicable in May 2018.

A recent update on the Court of Justice of the European Union’s (the “CJEU’s”) website has revealed that Digital Rights Ireland, an Irish privacy advocacy group, has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield (the “Privacy Shield”).

On July 20, 2016, the French Data Protection Authority (“CNIL”) announced that it issued a formal notice to Microsoft Corporation (“Microsoft”) about Windows 10, ordering Microsoft to comply with the French Data Protection Act within three months.

Background

Following the launch of Microsoft’s new operation system, Windows 10, in July 2015, the CNIL was alerted by the media and political parties that Microsoft could collect excessive personal data via Windows 10. A group composed of several EU data protection authorities was created within the Article 29 Working Party to examine the issue and conduct investigations in their relevant EU Member States. The CNIL initiated its investigation and carried out seven online inspections in April and June 2016. The CNIL also questioned Microsoft on certain points of its privacy statement.

On July 26, 2016, Isabelle Falque-Pierrotin, the Chairwoman of the Article 29 Working Party of data protection regulators, announced that EU data protection regulators will not challenge the adequacy of the EU-U.S. Privacy Shield (“Privacy Shield”) for at least one year (i.e., until after summer 2017). The European Commission is scheduled to conduct a mandatory review of the adequacy of the Privacy Shield by May 2017.

On July 12, 2016, after months of negotiations and criticism, the EU-U.S. Privacy Shield (“Privacy Shield”) was officially adopted by the European Commission and the Department of Commerce. Similar to the Safe Harbor, companies must certify their compliance with the seven principles comprising the Privacy Shield to use the Shield as a valid data transfer mechanism. Hunton & Williams partner Lisa J. Sotto and associate Chris D. Hydak recently published an article in Law360 entitled “The EU-U.S. Privacy Shield: A How-To Guide.” In the article, Lisa and Chris detail the ...

On July 12, 2016, the EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, and U.S. Secretary of Commerce Penny Pritzker announced the formal adoption of the EU-U.S. Privacy Shield (the “Privacy Shield”) framework, composed of an Adequacy Decision and accompanying Annexes.

On July 8, 2016, EU representatives on the Article 31 Committee approved the final version of the EU-U.S. Privacy Shield (“Privacy Shield”) to permit transatlantic transfers of personal data from the EU to the U.S.

On June 29, 2016, Politico reported that it has obtained updated EU-U.S. Privacy Shield documents following the latest negotiations between U.S. and EU government authorities. Certain aspects of the prior Privacy Shield framework were criticized by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor.

According to Bloomberg BNA, the EU-U.S. Privacy Shield framework could be approved by the European Commission in early July. The Privacy Shield is a successor framework to the Safe Harbor, which was invalidated by the European Court of Justice in October 2015. Certain provisions of the Privacy Shield documents, previously released by the European Commission on February 29, 2016, have been subjected to criticism by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor. According to Bloomberg BNA, the previously released draft adequacy decision, one of the Privacy Shield documents released on February 29, 2016, is expected to be modified.

On May 30, 2016, the European Data Protection Supervisor (“EDPS”) released its Opinion (the “Opinion”) on the EU-U.S. Privacy Shield (the “Privacy Shield”) draft adequacy decision. The Privacy Shield was created to replace the previous Safe Harbor framework invalidated by the Court of Justice of the European Union (“CJEU”) in the Schrems decision.

On May 26, 2016, the European Parliament approved a resolution calling for the European Commission to reopen negotiations with U.S. authorities on the EU-U.S. Privacy Shield (“Privacy Shield”), and to implement the recommendations of the Article 29 Working Party (“Working Party”) on the draft Privacy Shield adequacy decision.

The Working Party had previously published its recommendations in an Opinion regarding the draft decision issued by the European Commission on adequacy of the protection provided by the Privacy Shield. In the Opinion, the Working Party highlighted a number of key issues concerning access to European personal data by law enforcement and government agencies, and also recommended a number of changes to ensure that European citizens’ data are adequately protected.

On April 13, 2016, the Article 29 Working Party (the “Working Party”) published its Opinion on the EU-U.S. Privacy Shield (the “Privacy Shield”) draft adequacy decision. The Privacy Shield was created to replace the previous Safe Harbor framework invalidated by the Court of Justice of the European Union (“CJEU”) in the Schrems decision. The Working Party also published a Working Document on the justification for interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (European Essential Guarantees).

On March 17, 2016, Bojana Bellamy, President of the Centre for Information Policy Leadership (“CIPL”), participated on a panel of experts at a hearing in front of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) about the new EU-U.S. Privacy Shield for commercial transfers of EU personal data to the U.S.

On February 29, 2016, the European Commission issued the legal texts that will implement the EU-U.S. Privacy Shield. These texts include a draft adequacy decision from the European Commission, Frequently Asked Questions and a Communication summarizing the steps that have been taken in the last few years to restore trust in transatlantic data flows.

The agreement in support of the new EU-U.S. transatlantic data transfer framework, known as the EU-U.S. Privacy Shield, was reached on February 2, 2016, between the U.S. Department of Commerce and the European Commission. Once adopted, the adequacy decision will establish that the safeguards provided when transferring personal data pursuant to the new EU-U.S. Privacy Shield are equivalent to the EU data protection standards. In addition, the European Commission has stated that the new framework reflects the requirements that were set forth by the Court of Justice of the European Union (the “CJEU”) in the recent Schrems decision.

On February 24, 2016, President Obama signed the Judicial Redress Act (the “Act”) into law. The Act grants non-U.S. citizens certain rights, including a private right of action for alleged privacy violations that occur in the U.S. The Act was signed after Congress approved an amendment that limits the right to sue to only those citizens of countries which (1) permit the “transfer of personal data for commercial purposes” to the U.S., and (2) do not impose personal data transfer policies that “materially impede” U.S. national security interests.

On February 11, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the 2016 action plan for the implementation of the EU General Data Protection Regulation (the “Regulation”). The action plan outlines the priorities for the Working Party in light of the transition to a new legal framework in Europe and the introduction of the European Data Protection Board (the “EDPB”). Accompanying the statement is a document, Work Program 2016-2018, detailing the tasks of the Working Party’s subgroups during the transitional period between the adoption of the Regulation and its implementation.

On February 10, 2016, the U.S. House of Representatives passed the Judicial Redress Act, which had been approved by the Senate the night before and included a recent Senate amendment. The House of Representatives previously passed the original bill in October 2015, but the bill was sent back to the House due to the recent Senate amendment. The Judicial Redress Act grants non-U.S. citizens certain rights, including a private right of action for alleged privacy violations that occur in the U.S. The amendment limits the right to sue to only those citizens of countries that (1) permit the “transfer of personal data for commercial purposes” to the U.S., and (2) do not impose personal data transfer policies that “materially impede” U.S. national security interests. The bill now heads to President Obama to sign.

On February 3, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the consequences of the ruling of the Court of Justice of the European Union (the “CJEU”) in the Schrems case invalidating the European Commission’s Safe Harbor Decision.

On February 2, 2016, a new EU-U.S. transatlantic data transfer agreement was reached. Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, presented the new agreement to the European Commission (the “Commission”) today. According to the Commission’s press release, the new agreement will be called the EU-U.S. Privacy Shield.