eco Association and i2Coalition – High-Level Transatlantic Dialogue on the EU-US Privacy Shield

Roundtable Dialogues in Brussels and Berlin: A Summary

In an increasingly digital world, data is an invaluable resource and a key driver of innovation. However, to safeguard informational self-determination, the use of data in the interest of all citizens must be reconciled with effective protection of personal data. These were the opening words of Nadja Hirsch, Member of the European Parliament, at the first of two Transatlantic Dialogues which took place on 7 and 12 February in Brussels and Berlin respectively.

The dialogues were jointly hosted by eco – Association of the Internet Industry and the US-based i2Coalition (Internet Infrastructure Coalition), and brought together representatives of the Internet industry from both sides of the Atlantic. These included Google, Dropbox, ICANN, EuroISPA, BEUC, Access Now, CENTR, TechGDPR, Verizon, Fraunhofer Institute, and the American Chamber of Commerce in Germany, as well as members of the EU Parliament, members of the German Bundestag, and representatives of other European bodies, such as the European Data Protection Board and Data Protection Authorities. The core focus of the dialogues was on the future of international data transfer between the EU and the US – and, in particular, on that of the EU-US Privacy Shield.

Safeguarding the Privacy Shield

As a successor to the earlier Safe Harbor Agreement, which was annulled by the European Court of Justice (ECJ) in 2015, the EU Commission adopted the EU-US Privacy Shield in 2016 with two objectives in mind: long-term legal certainty for companies, and a solid framework agreement to safeguard the protection of personal data.

But the Privacy Shield itself is still not in calm waters, according to Oliver Süme, Chair of the eco Association and moderator of both the Berlin and Brussels roundtable dialogues. As such, Süme emphasized the importance of the roundtables, given the need to protect what is one of the most important legal grounds for transferring data from the European Union to the US. What’s more, a second potential legal ground for such transfers (that of Standard Contractual Clauses) is now subject to a court case in the ECJ. If not carefully addressed, such challenges could lead to an effective removal of grounds for lawful data transfer.

Imperfection Preferable to a Legal Vacuum

The general consensus at the roundtables was that, while still not perfect, the Privacy Shield contains a number of improvements compared to Safe Harbor, particularly in the areas of control, transparency, and liability. For the majority of participants, the most important distinguishing feature is the Ombudsperson mechanism in the US, which was created to allow for individual redress and independent oversight.

However, as participants also concurred, every protection regime is only as good as its application and enforcement. As such, the lack of clarity concerning the extent of US governmental access to personal data for security reasons is a factor which could jeopardize the Privacy Shield. And whereas the introduction of an Ombudsperson was a significant step in the right direction, this mechanism has yet to be implemented by the US – and there are still major questions concerning its independence and competences, especially vis-à-vis surveillance services.

Room for Optimism

An air of optimism was nonetheless evident at the roundtables, where David Snead, Policy Working Group Chair of the i2Coalition, provided valuable insights into the current situation and thinking in the US. Snead reported on “unprecedented levels of activity in the US Congress in the area of privacy” and, crucially, indicated that the appointment of the long-awaited Ombudsperson is now imminent. On balance, in comparison to the situation pre-GDPR, a positive process of evolution is now evident in the US.

As the roundtables drew to a close, it was agreed that such improvements should be in the focus of any discussions in the EU Member States going forward and that, ultimately, jeopardizing the agreement would do more harm than good.

third roundtable of the Transatlantic Dialogue is scheduled to take place in Washington in spring of this year. Meanwhile, for a more in-depth insight into the roundtable dialogues, read the full report here.

eco Association and i2Coalition – High-Level Transatlantic Dialogue on the EU-US Privacy Shield 1