Data Transfer Differences Said to Be Narrowing

The debate on trans-Atlantic data flows is starting to shift as the U.S. and EU increasingly recognize their shared values, officials said Tuesday at a webcast data protection and privacy conference in Brussels. The regions are negotiating a targeted enhancement to Privacy Shield that will comply with the European Court of Justice ruling in Schrems II, withstand further legal challenge and ensure U.S. sovereignty over its national security, said James Sullivan, International Trade Administration deputy assistant secretary for services. The ECJ decision overturned PS (see 2007240031). Any revised accord will have to relieve companies of the need to carry out separate reviews of the national security regimes of countries to which they want to transfer personal data, Sullivan said. Since the U.S. revised its surveillance laws in 2015, it has become the gold standard for protection against data access for national security purposes, he said. One complicating factor in the discussion is that Schrems II caused skepticism from some in the U.S. about making further commitments to Europe that could force changes in U.S. law, doubts reinforced by the EU not scrutinizing at the same level surveillance practices of some of its own members, he said. The European Commission is convinced the intersection of privacy and national security is the avenue to pursue to address the court ruling, said Bruno Gencarelli, head of international data flows and protection unit. He warned there's no quick fix because a solution must be legally and politically defensible. Gencarelli sees much more common ground now between the EU and U.S. and more convergence as more companies adopt data protection practices around privacy laws; nations at the G7, G20 and Organization for Economic Co-operation and Development level now realize that like-minded countries should be the ones to define common standards. Talks with the U.S. on an enhanced PS involve a negotiation on complex issues that won't be resolved overnight, Gencarelli said. It's a priority for the EC, and "we expect to move quickly" to agree on several provisions. This isn't a beauty contest about which privacy system is better; it's about finding solutions, he said. Sullivan said both sides have been "very creative" in coming up with solutions to bridge their differences, and challenges aren't insurmountable.