On March 25, 2022, the European Commission and the United States announced that they have reached an “agreement in principle” on a replacement for the EU-U.S. Privacy Shield, which was invalidated by the Court of Justice of the European Union in 2020.
The new framework will be designed to allow personal data to flow freely between the EU and participating U.S. companies, and will likely be seen as the main alternative to the “Standard Contractual Clauses” released by the European Commission last year.
Key elements of the new framework include:
- Obligations for companies processing data transferred from the EU to the U.S., which will include the requirement to self-certify their adherence to certain GDPR-like data protection principles, through the U.S. Department of Commerce;
- A new two-tier redress system to investigate and resolve complaints of individuals in the EU regarding access of their data by U.S. Intelligence authorities, which includes a to-be-established Data Protection Review Court;
- Specific monitoring and review mechanisms; and
- A new set of rules and binding safeguards to limit access to data by U.S. Intelligence authorities.
In terms of next steps, the agreement in principle will now need to be translated into legal documents i.e., an Executive Order on the U.S. side, and an adequacy decision from the European Commisison on the EU side.
The new framework is based in part on proposals from a group of privacy experts which includes Peter Swire, Senior Counsel at Alston & Bird.