The European Commission and Washington recently announced that an agreement had been reached for a new trans-Atlantic data flow agreement (the “New Privacy Shield”), after over a year of consultation.

This news will be welcomed by practitioners and organisations as signalling the end to much of the uncertainty surrounding the recently nullified EU/US Privacy Shield, which, for those who need reminding, was the result of the Schrems II case (see our blog on this here).  Readers will also remember that the predecessor to Privacy Shield which was known as “Safe Harbor” was also ruled to be invalid by the CJEU (see our blog on this here).

On 25 March 2022, The White House published a Fact Sheet outlining the framework for the New Privacy Shield, which will seek to amend the current EU/US Privacy Shield to bring it up to speed with recent data protection laws and developments. Some of the main aims of the New Privacy Shield Agreement will be to:

  • Strengthen the privacy and civil liberties safeguards governing U.S. signals intelligence activities;
  • Establish a new redress mechanism with independent and binding authority; and
  • Enhance its existing rigorous and layered oversight of signals intelligence activities.

As the US and EU Commission are now in the process of drafting the legal documents, we will monitor the progress and report on any further updates as and when they occur. It is however clear that it will not be straightforward to produce an agreement which does not immediately fall foul of the same criticisms and flaws as the CJEU found of the previous regime in Schrems II. Indeed it is difficult to see any new agreement succeeding unless it brings with it a fairly serious curtailment on the powers of the US intelligence authorities and gives EU citizens an effective right of redress should their data be the subject of action by the US intelligence authories.

If you have any questions in relation to the New Privacy Shield, please contact Nick Phillips or Selina Clifford.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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