Final agreement on the transfer of data to the United States

The European Union has reached a final agreement with the United States to allow personal data to cross the ocean without further conditions or authorizations. After EU ministers already approved the deal late last week, the preliminary deal that European Commission President Ursula von der Leyen reached with President Biden was converted into a final deal yesterday .

Businesses can freely exchange data between the EU and the US. EU-US data Privacy Framework replaces the Privacy Shield. Three years ago, the European Court of Justice struck down the latter deal because US intelligence services could too easily infiltrate the personal data of EU citizens. President Biden limited the latitude of his intelligence agencies earlier this year. In addition, the US Senate recently provided additional guarantees.

The European Commission has now officially recognized the United States as a country offering adequate protection to the personal data of European citizens. This means that America is equated with the EU in terms of data protection, although there are still differences.

The agreement is a relief for the thousands of companies that transfer data to and from the United States daily. The agreement puts an end to the legal uncertainty in this regard. But the question is whether the deal will last long.

Intact

Max Schrems, the Austrian privacy activist responsible for bringing down the two previous data pacts, will certainly challenge the new agreement. According to him, the US surveillance law, at the heart of his objections, is still intact. He wants to take the case to the European Court of Justice before the end of the year. Belgian European Commissioner for Justice Didier Reynders has already counted on this. He said yesterday the new system is “very robust” and will hold legally.

The executive order signed by President Biden provides binding safeguards limiting access to data by US intelligence agencies to what is necessary and proportionate to protect national security. An independent and impartial body will also be set up to deal with complaints from European citizens who believe that the secret services have had illegal access to their data. Finally, these intelligence agencies need to review their policies and procedures to implement the new safeguards.


Doubts

Walter van Holst, a consultant at privacy consultancy Hooghiemstra & Partners, doubts the substantial strength of the agreements. According to him, the uncertainty as to the sustainability of this is even greater. A new American president can always change things unilaterally and almost immediately, he said in a post on LinkedIn. For example, it designates a possible second term for Donald Trump, for example. Van Holst points out that the agreements have no formal legal basis. According to him, it is therefore always advisable to have a plan B for transfers to the United States.

Walter van Holst

Walter van Holst

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