The Privacy Shield, a new law framework concerning the transfer of personal data from EU to the USA has just been passed by the 28 states of the EU. Let us study its strengths and weaknesses compared to the current framework.
The regulatory system to oversee the transfer of data between Europe and the US was signed by 28 representatives of the countries of the European Union on July 8th. This so called “Privacy Shield” law has thus replaced the “Safe Harbor” agreement which was 15 years old. The latter had been superseded in October 2015, following a decision of the European Court of Justice (ECJ), specifically after the famous Snowden leaks. Indeed, the ECJ felt that European data were not sufficiently protected.
Madam Jourova, the European Commissioner for Justice, Consumer Rights and Gender Equality, seemed pleased after some quite complicated discussions with the American authorities. “For the first time, the US gave some written reassurance to the EU that the government access to data for law enforcement and national security would be subject to limitations, conditions and well-defined monitoring mechanisms and have ruled out mass surveillance targeting European citizens data. “This last remark explicitly targets the Snowden case.
However, according to the associations for personal data defenses, this new agreement has yet to prove it is worth it. Indeed, in April 2016 when the first version of the project was discussed, the G29, which brings together all European institutions in charge of telecom data and web users’ protection did consider that if the agreement showed some improvements, some specific points were to be strengthened. The point of mass surveillance, which led to the end the Safe Harbor, was not yet settled.
According to the French organization La Quadrature du Net, the Privacy Shield creates some issues: for instance, it does not take over agreements set between companies or with the internal rules for multinationals that have been defined since the end of the Safe Harbor. In fact, a company can apply its own rules, even if they go against the Privacy Shield. The association also points out the difference in the definition of “mass surveillance” between Europe and the United States, for which “massive data collection” does not enter under mass surveillance, although it is the case in Europe.
The new agreement still offers significant advance regarding personal data protection, specifically by establishing a referral system for European citizens in the United States. In addition, it will be more transparent regarding corporate control and, according to the text, penalties for violators will be more substantial. It is also scheduled to be reviewed and updated every year, unlike the former act which did last for 15 years.
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