The European Union and the US have just reached an agreement in principle on a trans-Atlantic data flows deal, which could signal an end to months of legal uncertainty that have hampered cloud services.
European Commission President Ursula von der Leyen said at a press conference with U.S. President Joe Biden that they had found an agreement in principle on a new framework for trans-Atlantic data flows.
Privacy and civil liberties will be safeguarded by predictable, trustworthy data flows between the EU and the U.S.
Pleased that we found an agreement in principle on a new framework for transatlantic data flows.
It will enable predictable and trustworthy
data flows, balancing security, the right to privacy and data protection.
This is another step in strengthening our partnership. pic.twitter.com/7Y0wslR7Go
Ursula von der Leyen posted on March 25, 2022.
In recent months, European data protection agencies have issued orders against flows of personal data passing via products such as Google Analytics and Stripe due to the legal uncertainty hanging over EU-U.S. data flows.
A revised draft decision was sent to Meta last month, after the company exhausted legal challenges against an earlier preliminary suspension order.
If EU regulators agree to suspend data transfer enforcements now that there is a political agreement, the social networking giant may not have to suspend its EU-U.S. data flows.
Meta was hoping that would happen as it sought to delay enforcement.
The EU and U.S. have agreed in principle, but how the two sides have been able to close the gap between their legal systems is not clear. There is little that can be taken away from today's announcement, since the deal will depend on exactly that fine detail.
Privacy Shield 2.0 is ‘high priority’ but ‘not easy’, warns EU’s Vestager
The uncertainty over EU-U.S. data transfers goes back further than 2020. Safe Harbor was invalidated by Europe's top court in 2015, over the same core clash between EU privacy rights and U.S. surveillance laws.
This dynamic means that any replacement deal will face fresh legal challenges to ensure that EU citizens rights are adequately protected when their data flows to the U.S.
von der Leyen suggested in further remarks during a wide-ranging press conference that we managed to balance security and the right to privacy and data protection. She said the agreement was balanced and effective, but gave no details on what had been decided.
The Commission had similar things to say about Privacy Shield, but the court took a different view. It is important to understand that a full and final assessment cannot be relied on by EU or U.S. counterparts.
The European Court of Justice has the power to weigh in.
Max Schrems, the privacy lawyer and campaigner whose name has become synonymous with striking down trans-Atlantic data transfer deals, was quick to sound a note of skepticism.
He responded to von der Leyen's announcement by writing: "Seems we do another Privacy Shield especially in one respect: Politics over law and fundamental rights."
This failed before. There is no reform on the U.S. side. Let's wait for a text and see if it fails again.
Seems we do another #PrivacyShield especially in one respect: Poltics over law and fundamental rights.
This failed twice before. What we hear is another "patchwork" approach but no substantial reform on the US side. Let's wait for a text, but my frist bet is it will fail again. https://t.co/y6RFUyB8eG
— Max Schrems
(@maxschrems) March 25, 2022
Privacy Shield lipstick on a pig was called by Schrems. His assessment of the text will have more weight than the Commission's.
According to his privacy advocacy not-for-profit, noyb, he expects to be able to get any new agreement that does not meet the requirements of EU law back to the court within a matter of months.
We will analyze the final text together with our U.S. legal experts. We or another group will likely challenge it if it is not in line with EU law. The Court of Justice will make a decision a third time. We expect this to be back at the Court within months from a final decision. Customers and businesses face more years of legal uncertainty.
Unless there is a significant change to US Surveillance law underpinning this, it is hard to see how it could survive a challenge. In that scenario, the role of the Commission lawyer before the CJEU is not an enviable one! https://t.co/aIbOdHkK7N
— Gerard Rudden (@GerardARudden) March 25, 2022
The tech industry's response to the news of another revived data transfer deal was positive.
The announcement that the two sides would come up with a compromise was welcomed by both sides.
A company spokesman told us:
“People want to be able to use digital services from anywhere in the world and know that their information is safe and protected when they communicate across borders. We commend the work done by the European Commission and U.S. government to agree on a new EU-U.S. framework and safeguard transatlantic data transfers.”
The CCIA tech industry association, which has been lobbying hard for a replacement to Privacy Shield, was happy with today's announcement.
The report was updated with additional comments.
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