This is the first of two parts providing an overview and analysis of the EU-U.S. Privacy Shield Agreement. The first part focuses on the general framework of the Privacy Shield and on the responsibilities of the private sector in taking advantage of the protections offered by the Privacy Shield: self-certification; review by the U.S. Department of Commerce; the principles (transparency, quick attention to consumer inquiries and complaints, free (to consumer) dispute resolution mechanisms); and cooperation with data protection authorities. Part II will look at the primary government responsibilities in terms of enforcement and the U.S. government’s agreements to limit bulk data collection and provide analysis of the framework.
On Feb. 29, the U.S. Department of Commerce and European Commission released the full text of the new EU-U.S. Privacy Shield Agreement, the much anticipated replacement for the Safe Harbor framework, to allow transfer of personal information of people living in the European Union to the United States for commercial purposes. The Privacy Shield comes at a critical time as there is increasing uncertainty regarding the legality of data transfers in the wake of the European Court of Justice’s (ECJ) Oct. 6, 2015, decision invalidating the Safe Harbor framework. While the Privacy Shield would give U.S. businesses the certainty they desire, as will be discussed below, final acceptance and implementation of the Privacy Shield, at least in its present form, is far from certain. With that caveat, it is important to become familiar with the Privacy Shield as the general framework is likely to be included in substantial form when an agreement is finalized and following its requirements will likely give some protection in the interim.
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