Amid the constitutional and political uncertainties surrounding the Brexit process, the UK Government has provided welcome assurance on the data protection front. Guidance issued by the Department for Digital, Culture, Media & Sport (DCMS) confirms how UK data protection law will work in the event the UK leaves the EU without a deal. Whilst the Government still regards a No Deal Brexit as “unlikely”, given the extremely severe implications of that scenario for transfers of personal data into and out of the UK, the DCMS confirmation is hugely helpful in terms of the preparations needed for that eventuality.
The Department for Digital, Culture, Media and Sport (‘DDCMS’) has today released guidance on “Data protection if there’s no Brexit deal”, which is part of its preparations for if there is a “no deal” scenario when the Article 50 negotiating period comes to an end on 29 March 2019. The UK will become a “third country” on its exit from the European Union, which means that unhindered cross-border transfers of data will no longer automatically be able to take place between the UK and the EU. The guidance confirms that, given the “unprecedented alignment” between the UK and EU data protection regimes, the UK would continue to allow transfers of data from the UK to the EU at the point of exit. However, the Commission has made it clear that they would not make a decision on adequacy until the UK is a third country (that is, after 29 March 2018), and its procedure for reaching a decision typically lasts several months.
Territoriality will continue to be one of the most vexing problems for data regulation in 2018. One aspect of this debate relates to whether a U.S. judge can compel the disclosure of personal data located in Europe without using international treaty mechanisms. This issue is currently being considered by the United States Supreme Court in the case United States v. Microsoft. The case involves the question of whether a U.S. statute relating to search warrants can be interpreted as extending to a search for data located outside the United States; in this case, the data is located in Ireland. The U.S. Court of Appeals found that, in the absence of express wording in the statute relating to extraterritorial application, the statute should be interpreted as being limited to searches conducted within the territory of the United States. The Supreme Court is currently reviewing the case. In December, 2017, the European Commission filed an amicus brief urging the Supreme Court to give due consideration to the principles of international comity and territoriality when interpreting the U.S. statute.
Following the European Commission and European Parliament’s proposed versions of the EU Regulation on Privacy and Electronic Communications, we are now waiting for the Council of the European Union to agree their position before discussions between the three bodies can begin. A discussion paper from the Bulgarian Presidency of the Council dated 11 January 2018 shows that the Council is still considering multiple options in relation to several critical issues.
Making predictions for the year ahead is possibly as desirable as unreliable. In a world of unlimited data and advanced science, it would be tempting to think that the future is already written. Algorithms and artificial intelligence will show us what lies ahead with immaculate accuracy. Or perhaps not. At least not yet. To say that the world is in turmoil is an understatement and the same is true of the world of privacy and data protection, which makes predicting the future particularly tricky. But since the urge to plan, budget and prepare for what is likely to happen next is so real, now is a good time to pause, reflect about what’s going on, and make some predictions for 2018.
On 6 October, the German Federal Cartel Office launched its new series of papers on “Competition and Consumer Protection in the Digital Economy.” The first paper deals with “Big Data and Competition.” The same day, a “real-life example” of competition enforcement in Big Data became public. The EU Commission confirmed unannounced inspections in “a few Member States” concerning online access to bank customer’s account data by competing service providers.
The European Commission has released its proposal for a new EU e-Privacy Regulation that will replace the existing e-Privacy Directive. The high level aim of the draft e-Privacy Regulation is to harmonise the specific privacy framework relating to electronic communications within the EU and ensure consistency with the GDPR. Compared to the existing Directive, the draft e-Privacy Regulation has broader territorial reach and applies generally to the provision of electronic communications services to end users in the EU and to the use of such services. It is also concerned with the protection information related to the devices of end users located in the EU.
Connected vehicles today are rolling computers able to exchange information wirelessly with manufacturers, other vehicles, and third party service providers to significantly improve safety, efficiency, and comfort for drivers. Many entities are interested in the data these connected vehicles generate and transmit. These entities include dealers and repair shops, vehicle fleet service providers, end-users, infrastructure operators, diagnostics providers, researchers, financial services companies and insurance companies. The European Commission and industry actors in Europe, while recognizing the challenges of wide-spread deployment of these technologies, have taken further steps to develop a regime that facilitates information sharing for vehicle to vehicle, vehicle to infrastructure and other communications by delineating specific actions to take in the near future.
On 12 July 2016, the European Commission issued its much awaited “adequacy decision” concerning the Privacy Shield framework for the transfer of personal data from the EU to the U.S. This adequacy decision is based on the latest version of the Privacy Shield, which was further negotiated and revised following the Article 29 Working Party’s April 2016 concerns with the terms of the original Privacy Shield framework. Many of our clients have questions about Privacy Shield—what it is, when it will be available for use, and how it differs from other data transfer mechanisms, among others. We have prepared blog post to answer these questions about the updated version of Privacy Shield and its implications for companies engaging in trans-Atlantic data flows.
The European Commission has actively promoted the importance of mHealth following their 2014 consultation. One of the initiatives to emerge from the Commission has been the Privacy Code of Conduct for mHealth apps. The Code was drafted by a working group set up in January this year and the final draft was published on 7th June and submitted to the Article 29 Working Party for their consideration and approval. If and when it receives the Working Party’s approval it could then be relied upon by app developers wishing to demonstrate a good standard of data protection compliance. The Code is an example of the type of initiative that is increasingly likely to develop under the forthcoming EU General Data Protection Regulation.
One of Harry Houdini’s most difficult tricks consisted of escaping from a nail-fastened and rope-bound wooden crate with manacles on his hands and feet, while submerged in New York’s East River. That feat is starting to look straightforward when compared to the prospect of lawfully exporting personal data out of the European Union. The restrictions on transfers of data to jurisdictions that do not provide an adequate level of protection have been in place for more than 20 years. And while these restrictions have not prevented the development of the digital economy, judging by this issue’s current direction of travel, we could be facing a situation from which not even the great Houdini could escape.
Unveiled February 29, 2016, the new EU-U.S. Privacy Shield attempts to address the shortcomings of the Safe Harbor arrangement identified originally by the European Commission and later by the Court of Justice of the European Union in its Schrems decision. The Privacy Shield proposes improved data protection principles, better enforcement by the US Department of Commerce and the Federal Trade Commission, redress mechanisms for EU citizens, and safeguards surrounding law enforcement and intelligence activities. The European Parliament adopted a resolution on May 26, 2016 praising the progress made, but highlighting shortcomings in the Privacy Shield as presented in February 2016. Now that the Irish Data Protection Controller has referred another data transfer mechanism known as Standard Contractual Clauses to the courts for review of their adequacy, greater focus will be placed on whether the criticisms of Privacy Shield are well founded.
On 12 April 2016, the European Commission launched a public consultation on the ePrivacy Directive. Interested parties who wish to participate have until 5 July 2016 to submit responses to the Commission’s 33 questions.
From the moment that the Chairman of the Article 29 Working Party, Isabelle Falque-Pierrotin, announced at a press conference on 3rd February this year that the Working Party would assess the standing of the EU-US Privacy Shield under EU law, privacy professionals have been waiting to see what the Working Party’s view would be. Earlier this week, on 13th April, the Working Party provided their initial opinion. On the one hand, the Working Party welcomed the significant improvements of the Privacy Shield as a positive step forward. Yet, on the other hand, the Working Party set out their strong concerns on the commercial aspects of the Privacy Shield and the ability for US public authorities to access data transferred under the Privacy Shield. The opinion concluded by urging the European Commission to resolve these concerns and improve the Privacy Shield.
The February 29, 2016 announcement of the new EU-U.S. data transfer framework—the Privacy Shield—was accompanied by over 130 pages of documentation and significantly more operational details than its predecessor, Safe Harbor. We have reviewed the Privacy Shield materials and published a comprehensive breakdown of the changes from Safe Harbor to Privacy Shield and the practical impact on business: Inside the New and Improved EU-U.S. Data Transfer Framework.
On February 29, 2016 and after more than two years of negotiations with the U.S. Department of Commerce, the European Commission released its draft Decision on the adequacy of the new EU–U.S. Privacy Shield program, accompanied by new information on how the Program will work. The Privacy Shield documentation is significantly more detailed than that associated with its predecessor, the EU-U.S. Safe Harbor, as it describes more specifically the measures that organizations wishing to use the Privacy Shield must implement. Importantly, the Privacy Shield provides for additional transparency and processes associated with U.S. government access to the personal data of EU individuals.
Connected cars can generate large volumes of data, including data on engine performance, location, and driver behaviour. The European Commission has convened multi-stakeholder groups to figure out how to organize access to that data in a safe, competitively neutral, and privacy-friendly way. Two recent reports shed light on the principles under consideration for data sharing infrastructures in the EU. And legislative and regulatory developments in the EU will likely have a substantial impact on connected car deployments.
The roller coaster of developments affecting the Safe Harbor framework shows no signs of slowing down. It has taken a couple of years since Edward Snowden’s revelations for the train to reach to its highest point, but once the European Court of Justice ruled on the Schrems case, we knew it would be a bumpy ride. In the past weeks, most of the attention has focused on the EU data protection authorities, which are now more emboldened than ever and keen to capitalize on the ECJ’s decision to tighten the regime affecting international dataflows. The European Commission’s communication of 6 November to the European Parliament and the Council of the EU, coupled with its practical guidance, represents yet another turn in this uncertain journey. At the same time, the Commission’s intervention is helpful in terms of the decision-making process that many organisations—for which transatlantic transfers are vital—are trying to grapple with.
On November 6, 2015, the European Commission issued its widely anticipated Communication to the European Parliament and Council about the effect of the Court of Justice of the European Union’s Schrems decision, which invalidated the U.S.-EU Safe Harbor framework. The Commission expresses a commitment to negotiate with the U.S. Government a new framework for cross-border transfers of personal data. The Commission also emphasizes that the Communication does not have binding legal effect, but concludes that companies should rely on “alternative tools” for authorizing data flows to third countries like the United States.
On 6 October 2015, the Court of Justice of the European Union declared the EU-US Safe Harbor framework invalid as a mechanism to legitimize transfers of personal data from the EU to the US. This decision effectively leaves any organisation that relied on Safe Harbor exposed to claims that such data transfers are unlawful. In this post, we outline the effects of the decision and a suggested plan of action, and include details for a webinar we will be hosting on Wednesday, 7 October to discuss the next steps that organisations should take.
It’s been a long way and the task is not over yet. However, there is light at the end of the EU data protection reform tunnel. The modernisation of European privacy laws has reached a critical milestone and we can now safely assume that this process will culminate in a radical new framework in a matter of months. This entry is an excerpt from Hogan Lovells’ “Future-proofing privacy: A guide to preparing for the EU Data Protection Regulation.”
The European Union’s executive branch has a brand new engine. Following the European Parliament’s election earlier this year and after months of political manoeuvring, a new European Commission is now in place and fully operational. The Commission’s functions remain as they were but under a revised structure of one president – Jean-Claude Juncker – seven vice-presidents responsible for designated policy areas and 20 commissioners. As the main policy making body in the European Union, the Commission continues to be in charge of pushing forward the ongoing data protection legislative reform that will lead to a new legal framework for privacy across the EU.
Assuming a fair amount of hard work and that the EU institutions are able to put their political skills to good use, 2015 may be the year that sees the culmination of a legal modernisation process that has been running for the best part of four years. It was in 2010 when the European Commission formally acknowledged that the 1995 Data Protection Directive was ready for a makeover to address the privacy and data protection needs of the 21 century. Since then, stakeholders covering a whole spectrum of views have participated in a process that is approaching a decisive stage. In early 2014, the European Parliament came forward with a bold proposal to amend the Commission’s original draft and put the ball firmly in the Council of the EU’s court. As the Council finalises its own proposal, a picture of what the new framework will look like is starting to emerge.
In a new turn to the Maximilian Schrems case in Ireland, the Irish High Court on 18 June 2014 decided to refer several questions to the European Court of Justice, including whether national data protection authorities in Europe may disregard the Safe Harbor decision of the European Commission when assessing whether the U.S. recipient of data ensures an adequate level of data protection required under EU law. Depending on the outcome of the case, European and U.S. companies may not be able to rely on Safe Harbor to legitimise cross-border data transfers in the future.