The European Commission recently issued an overall positive review in its first annual report on the E.U. – U.S. Privacy Shield (“Privacy Shield”),  after evaluating the Privacy Shield in its joint review with the US last month.

The Privacy Shield took effect in August 2016 replacing the EU – US Safeharbor that was invalidated by the EU High Court of Justice. Over 2,500 companies and tens of thousands of EU companies rely on the Privacy Shield to transfer data between the EU and US.

First Joint Review

In September, the E.U. Justice Commissioner Vĕra Jourová and US Secretary of Commerce Wilbur Ross, launched the first annual joint review of the E.U. – U.S. Privacy Shield (“Privacy Shield”), a built-in requirement of the agreement. E.U. Commissioner Jourová anticipated “some proposals for improvement” but didn’t expect that it “will reopen negotiations again.” On the U.S. end, the White House firmly believed that the review would “demonstrate the strength of the American promise to protect the personal data on citizens of both sides of the Atlantic,” stated White House press secretary Sarah Sanders.

The review examined all aspects of the Privacy Shield administration and enforcement, including commercial and national security related matters, broader US legal developments and communication between E.U. and U.S. authorities.

EU Commission Report

After evaluating the results of the joint-review, the EU Commission published its first annual report on the functioning of the EU-US Privacy Shield (“the Report”) confirming that the Privacy Shield framework provides an adequate level of protection for personal information transferred from the EU to the US. The Report provides a green light for companies that rely on the Privacy Shield for their transatlantic data flow.  Nonetheless, the Report did have concern over US surveillance practices, and Privacy Shield oversight.

The EU Commission provided ten recommendations in the Report to help improve Privacy Shield framework implementation. Key recommendations include:

  • Greater cooperation between all enforcement entities – U.S. Department of Commerce, Federal Trade Commission and EU Data Protection Authorities.
  • More proactive and regular monitoring of corporate compliance by the US Department of Commerce (“DoC”). This includes that self-certified companies should be required to respond to compliance review questionnaires or file annual compliance reports with the DoC. 
  • Reform/Review of US surveillance practices – in particular those associated with the Foreign Intelligence Surveillance Act and privacy protections for non-US citizens.
  • Immediate appointment of the Privacy Shield Ombudsperson, and filling key positions in the Privacy and Civil Liberties Oversight Board.

Commenting on the Review, EU Justice Commissioner Jourová stated that, “Transatlantic data transfers are essential for our economy, but the fundamental right to data protection must be ensured also when personal data leaves the EU. Our first review shows that the Privacy Shield works well, but there is some room for improving its implementation. The Privacy Shield is not a document lying in a drawer. It’s a living arrangement that both the EU and U.S. must actively monitor to ensure we keep guard over our high data protection standards.”

For more information on the Privacy Shield compliance requirements and assessing whether the Privacy Shield is the proper mechanism for your company to use when transferring data outside of the EU to the US, we have prepared a Comprehensive EU – US Privacy Shield Q & A.

Tags: data transfer, DoC, EU, EU Justice Commissioner, EU-U.S. Privacy Shield, EU/U.S. Safe Harbor, European Commission, Privacy Shield, US, US Department of Commerce, Vĕra Jourová
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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