Privacy shield under pressure

Privacy Shield, the mechanism governing trans-Atlantic data flow essential to many companies, is being challenged by EU lawyers who have backed MEP’s calls for its suspension. The Council of Bars and Law Societies of Europe (CCBE), which represents more than 40 countries, has added its voice to the increasing international pressure on the US over its failure to iron out many of the points of concern in the deal. It was hastily compiled in 2016 following the collapse of its predecessor, Safe Harbor, with the expectation that a number of issues would be resolved retrospectively. This has not happened, so the CCBE has now called for its suspension pending the resolution of these issues.

Discussions in Washington DC between MEPs and the US government over data protection, come amid a climate of already strained international relations, and the prospect of a second data deal collapsing is one that both parties had hoped to avoid. At its inception, Privacy Shield was set to be reviewed annually, and the first such review highlighted many outstanding areas of concern. With the European Court of Justice’s ruling on Max Schrem’s case against Facebook still awaited, the Standard Contractual Clauses that were the fallback option for many firms when Safe Harbor collapsed are no longer the firm ground that they may have appeared to be. Better frameworks are urgently needed, added to which the general concerns about the Trump administration’s record on data security are making an already tense situation much worse.

The CCBE has backed a European Parliament resolution that Privacy Shield be suspended from September 1st if significant progress has not been made to improve it by then. In particular, CCBE has taken aim at the lack of legal remedies, binding control and oversight. Among a lengthy list of concerns it has pointed out that the office of the ombudsman, which should be the arbiter of good practice, has next to no actual power over the US government’s controlling body in the event that things go wrong, and questioned whether the opaque legal framework actually provides for any effective legal remedy or recompense in claims of unlawful surveillance.