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Privacy Shield: "doomed" or "a very durable framework"?

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Privacy Shield: "doomed" or "a very durable framework"?

The Christian Science Monitor welcomed the decision, publishing a column that said the deal would open “the door on a new era of safe, secure digital commerce for European citizens and businesses”, even if it would be “certain” that the deal would face legal challenge.

According to the column, Privacy Shield addresses the major concerns about Safe Harbour, the predecessor of Privacy Shield, by outlining “the fortifications to existing safeguards against government access to personal data for the purposes of national security surveillance”, and by providing “clear, inexpensive avenues of redress for individuals concerned that their data is being used improperly.”

Instead of seeing the deal as a finished agreement, “we should view Privacy Shield as a living framework,” as there will be ongoing consultations about its effectiveness. If challenged at the courts, their eventual decision would “have a monumental impact on the future of Europe, and on the European Union’s place in the global economic hierarchy”.

Meanwhile, in an interview with Politico, the two lead US negotiators seemed confident about the deal, saying it was “a very robust set of privacy protections and a very durable framework”, even if it would probably be challenged at courts.

Also Microsoft voiced their approval of the deal in an article (sponsored content) published on Politico, saying it “puts data flows between Europe and the U.S. on a solid legal foundation”. The article also views the agreement as a “living framework”, because of the annual review clause that allows the EU to cancel the deal if it finds that the US is not delivering the level of privacy that is expected. “Our customers, our vast network of partners in Europe and Microsoft itself will all benefit from a stable legal framework, with flexibility built in.”

The market research association ESOMAR broke down the deal in greater detail from the participating companies’ point of view. They also estimate that the possibility of Privacy Shield being struck down by the European Court of Justice is high: “Companies should think carefully about whether they wish to invest the time and resources to certify under the new scheme in light of this uncertainty.”

Already before the signing on the agreement it seemed clear that it would be challenged at the courts, with some commentary asserting that the deal would be shot down fairly certainly.

Max Schrems, who initiated the complaint against Facebook that ended Safe Harbour, for instance estimates that Privacy Shield is “doomed”: “It’s the same as Safe Harbor with a couple of additions, and it’s going to fail like the one before.” He acknowledged that Privacy Shield was an improvement from Safe Harbour, but “far from what the ECJ has asked for”. For more on Schrems’s thoughts about the new deal, see his interview with the Greens/EFA.

Schrems is not alone: many other privacy activists and groups have said the agreement fails to guarantee the level of protection that the Court of Justice called for. For instance Access Now viewed Privacy Shield as failing to address the key problems with Safe Harbour, saying “users will have to turn to the Court to have their rights restored.”

Update: In a related case, the US government was allowed by an Irish court to join a case on examining cross-border data transfers from Facebook's European headquarters, based in Dublin, into the US, CNET reports. This will potentially allow the US to deliever its view for the case on the processing of data that enters its borders.

(image source)


Teemu Henriksson's picture

Teemu Henriksson


2016-07-18 18:09

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