What progress in replacing the Safe Harbor scheme?
The Judicial Committee of the US Senate approved the Judicial Redress Act (JRA) on 28 January 2016 (symbolically, International Data Privacy Day) designed to remove one of the obstacles which led to the Court of Justice in the European Community (CJEU) declaring that Safe Harbor agreements are no longer lawful under EU law.
In December 2015, the CJEU found that the Safe Harbor agreement, which permitted data concerning EU citizens to be forwarded and processed in the US, could no longer be regarded as lawful (see our previous article here). This was due to recent disclosures revealing that US security authorities engaged in routine surveillance of data without there being any means of redress by the data subject for unwarranted surveillance.
In recognition of the considerable impact of this decision on international data flows, efforts have been underway to find a means of enabling data transfers to continue to the US in a way which will satisfy the CJEU.
The JRA provides a significant step in this direction, and when passed by the full Senate will extend the same privacy rights that currently protect US citizens to EU citizens. Most importantly, EU citizens will have rights of judicial redress if their data is mishandled by US corporations and the US government. In essence they will be able to:
- access records about themselves collected by the US government;
- amend those records; and;
- sue if there is unlawful disclosure.
It remains to be seen whether this Act will be sufficient to satisfy the EU Commission that these are adequate safeguards. Discussions between the EU Commission and US authorities, which were intended to produce an agreement by 31 January 2016, have not done so and the national data protection agencies from each EU member state are due to announce their decision on data flow to the US on Wednesday 3 February 2016.
As explained in our previous article here, there are a number of alternatives to using the Safe Harbor Scheme. Call us to discuss your options in minimising your risks when transferring data to the US on +44(0)203 051 5711 or email us.
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