New EU-U.S. Privacy Shield Replaces Invalidated U.S.-EU Safe Harbor Program

On February 2, 2016, the European Union and U.S. negotiators announced an agreement in principle to replace the invalidated U.S.-EU Safe Harbor framework in furtherance of permitting the transfer of personal data to the U.S.

The new EU-U.S. Privacy Shield includes clear safeguards to be put in place by the U.S. government for preserving the privacy of data subjects who provide their data to U.S. companies.  While details are still uncertain, robust obligations regarding the manner in which personal data is processed will certainly be included.

It is contemplated that the FTC will coordinate with EU data protection officials to resolve data subject complaints regarding government access to data.  EU citizens shall also possess redress for commercial privacy breaches.

There is little doubt that data protection and related issues will be met with more aggressive oversight.  Briefings regarding the details of and compliance with the Privacy Shield will soon be offered by the Commerce Department and numerous changes are anticipated regarding data transfers.  The announcement should provide some degree of relief and confidence to companies facing a great deal of recent uncertainty and delays pertaining to transatlantic data transfer.

Critics of the agreement remain skeptical of the practicality of necessary policy and oversight, also pointing to how effective actual legal redress might be and the scope of potential infringement of the rights of EU citizens.

If you are interested in learning more about this topic, please consult with an FTC compliance and defense lawyer.

Richard B. Newman is a leading Internet Law Attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements. 

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.