US to adopt a new EU data-sharing agreement

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US president Joe Biden on Friday signed an executive order detailing the measures the White House will take to implement a new data-sharing agreement with the EU, a move the administration called a “critical step” for transatlantic relations. The executive order sets out how Washington will implement America’s commitments under the EU-US data privacy framework announced by Biden and European Commission president Ursula von der Leyen earlier this year. It includes a mechanism for people in the EU to seek redress if they believe their data is used unlawfully by US intelligence agencies. Friday’s executive order marks a significant step forward more than two years after the European Court of Justice struck down the previous data-sharing agreement between the EU and the US, known as Privacy Shield, in a blow to the thousands of companies that relied on the agreement to move data easily between the two regions.

The 2020 ECJ ruling came after Austrian privacy campaigner Max Schrems filed a complaint against Facebook, arguing his privacy was violated when the company transferred his data to the US, where it could be accessed by US intelligence agencies. Several years earlier, Schrems had brought another successful legal challenge against an earlier US-EU data-sharing agreement known as Safe Harbour. White House officials this week emphasised they had worked closely with their EU counterparts to develop the new agreement, and said they were “confident” the mechanism would stand up to any fresh legal scrutiny. This is a culmination of our joint efforts to restore trust and stability to transatlantic data flows, and is a testament to the enduring strength of the US-EU relationship and our shared values,” said Gina Raimondo, US commerce secretary.

The EU-US data privacy framework will provide a durable and reliable legal foundation and certainty for transatlantic data flows, and create greater economic opportunities for companies and citizens on both sides of the Atlantic, Raimondo said ahead of Friday’s announcement. It will enable a continuous flow of data that underpins more than a trillion dollars in cross-border trade and investment every year. Senior Biden administration officials said that while they could not “predict the outcome of any legal challenges that might occur in the future, they were “confident” the new agreement addressed the concerns outlined in the 2020 ECJ ruling. We have really put forward a framework that is fundamentally different from what was in place before, said one senior administration official. The EU is expected to issue its own equivalent decision by the spring of next year. This is an important sign to businesses to bring legal certainty even if it’s not immediate. Intelligence agencies found to be breaking the new binding rules will be forced to delete the data in question through the creation of a new court with more enforcement powers, the official added. Any inhabitant of the EU will be able to lodge a complaint if they fear they are being surveilled unlawfully and the process will need to be handled in a “reasonable” timeline, the person added.

Schrems described the new agreement as “not solutions, but steps towards a third flawed deal” and that it would probably be tested in court if it does not provide proper protection of privacy. It is astonishing that two democracies that agree on principles like judicial approval of surveillance cannot come to a proper agreement. It seems, the US still supports the idea that non-US persons shouldn’t have fundamental rights. Facebook owner Meta and other companies that transfer data to the US are expected to welcome the move as a sign that the main mechanism used to enable companies to transfer pictures, personal data and emails across the Atlantic will continue to work.

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