Cross-border

Irish High Court Refers Schrems 2.0 to the ECJ

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On April 11, Justice Caroline Costello of the Irish High Court referred the Schrems 2.0 case to the Court of Justice of the European Union (ECJ) with 11 questions for the ECJ to answer. Per Justice Costello, the sole issue in the case is whether the European Commission’s Decisions regarding standard contractual clauses (SCCs) are valid, which is reflected in the 11 questions posed. The reference asks the ECJ to determine: Whether provisions of EU law related to national security, public security, defense, and state security apply to transfers of data outside the EU under SCCs; Whether [...] Read more

The CLOUD Act and its Impact on Cross-Border Access to the Contents of Communications

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On Friday morning, March 23, President Trump signed the $1.3 trillion omnibus spending bill into law, including the Clarifying Lawful Overseas Use of Data (CLOUD) Act, and in doing so established a sea change in the rules for cross-border government access to the contents of electronic communications. The CLOUD Act consists of three core components: (1) resolving the main issue in the Microsoft Ireland case pending before the U.S. Supreme Court, (2) providing a process for entities to request a comity analysis for potential conflicts with non-U.S. legal obligations, and (3) removing legal barriers [...] Read more

Supreme Court Hears Oral Argument in the Microsoft Ireland Case

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On Tuesday, February 27th, the U.S. Supreme Court heard oral argument in United States v. Microsoft Corp. on whether a warrant issued under the Stored Communications Act (SCA) can compel the production of data stored outside the United States. Where Microsoft argues that the emails stored outside the United States also lie outside the reach of the SCA, the government contends that the SCA focuses on “classically domestic content,” and that Microsoft can be compelled within the U.S. to turn over records it controls regardless of where the data sought is stored. This case began in December [...] Read more

Privacy & Data Security Team Launches Unique GDPR Tracker Website

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“To Harmonize or Not To Harmonize: That Is the Question.” With the the GDPR fast approaching on May 25, 2018, European Member States are getting ready with the implementation of national legislation. Although the GDPR is a regulation, and directly applicable in all Member States, it has left room for country-specific legislation in several different regards (such as the processing of employee data or individual rights restrictions). Most Member States still only have draft legislation at this point, but the expectation (or at least intention) is that each country will have adopted legislation [...] Read more

ECJ Rules against Schrems Class Action, Sets Up Jurisdictional Questions for GDPR Class Actions

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In late 2015, the European Court of Justice (ECJ) issued its initial Schrems decision, invalidating the EU/US Safe Harbor and leading to important developments in the rules for transferring personal data from the EU to the US.  Since that decision, Mr. Schrems has pursued two further legal proceedings in the EU. The first involves Mr. Schrems’ challenge in the Irish courts to EU Standard Contractual Clauses, which permit data to be transferred internationally between contract parties.  In the trial,  Alston & Bird Special Counsel Peter Swire testified as an expert on US national [...] Read more

Data Protection Litigation to Become a New Reality in Belgium

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On November 16, 2017 the Belgian Senate adopted an “Act on the Establishment of the Data Protection Authority” (the “Act”). Following Austria, Germany, and the UK, Belgium is the fourth EU Member State to pass a domestic statute implementing the General Data Protection Regulation 2016/679 (“GDPR”) prior to its effective date of 25 May 2018. The new Belgian Act sets forth the structure and legal organization of the Data Protection Authority (“DPA”), which will serve as the successor of the current Belgian Privacy Commission. More importantly, the Act significantly broadens the DPA’s [...] Read more

Irish High Court refers Facebook’s data case to the European Court of Justice

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In what it considered “an unusual case” (available here), the Irish High Court has referred the issue of the way data is transferred between the EU and countries outside the EU to the Court of Justice of the European Union (“CJEU”). Ms. Justice Caroline Costello will ask the CJEU for a preliminary ruling on the validity of the Standard Contractual Clauses (“SCCs”) as an adequate data transfer mechanism. Justice Costello did not comment on the laws of the EU or the US, but rather on the validity of SCCs as a data transfer measure between the EU and the US. The case arose from a complaint [...] Read more

Professor Peter Swire Publishes his Expert Testimony from Schrems 2.0

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Peter Swire, Elizabeth and Thomas Holder Chair at the Georgia Tech Scheller College of Business and senior counsel at Alston & Bird, has made public his expert testimony from the landmark Irish High Court Case Data Protection Commissioner v. Facebook Ireland Limited & Maximillian Schrems. Under the Irish Court’s rules, Swire was asked to provide an independent opinion on U.S. surveillance law to assist the Court in its decision. Swire’s testimony highlights U.S. systemic remedies, U.S. individual remedies, Foreign Intelligence Surveillance Court oversight, and the broader implications [...] Read more

WP29’s Guidance on the Lead Supervisory Authority

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Late last week, the Article 29 Working Party (“WP29”) issued detailed guidance on companies’ obligations under three key provisions of the General Data Protection Regulation (GDPR).  This is part three of a three-part Alston & Bird series evaluating WP29's positions, and relates to  the “One Stop Shop” mechanism which aims at simplifying the way companies with operations in multiple EU countries interact with the EU supervisory authorities (“SAs”). Part 1 deals with Data Protection Officer Obligations, under the GDPR, while part 2 analyzes guidance on the Right to Data Portability. The [...] Read more

A Brief Overview of the Privacy Shield

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A one page summary is now available to help U.S. organizations initially evaluate whether the Privacy Shield represents a viable mechanism to legitimize their transfer of personal data from the European union. The summary lists the key features and requirements of the Privacy Shield, some of which were contained in the now-invalidated EU-U.S. Safe Harbor Framework, but have been made more stringent. Our Information Security & Privacy Team also is compiling a detailed checklist to help corporations identify the specific requirements to certify for the Privacy Shield. [...] Read more