key-digitaliStock_000022243984_LargeThe European Union and United States differ greatly on law regulating the collection and transfer of personal data. For many years companies could rely upon the U.S.–EU Safe Harbor to lawfully make transatlantic data transfers and bridge the gap between the differing privacy frameworks. But in October 2015, the EU Court of Justice invalidated the U.S.–EU Safe Harbor on the grounds that it did not adequately protect personal data. This ruling jeopardized the continued flow of data from the EU to the United States and left many companies wondering how they could continue collecting and using data from the EU without violating the law.
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USA Captain America postage stampMarvel fans know that Captain America’s shield is extraordinary, but exactly what it’s made of remains unknown – Vibranium? Adamantium? Unobtanium (oops, wrong movie)? For the time being, similar mystery shrouds the specifics of the new EU-U.S. Privacy Shield. Four months ago we posted on the European Court of Justice’s ruling that the U.S.-EU Safe Harbor was invalid. This Tuesday the European Commissioner announced negotiations with the U.S. had successfully yielded a new vehicle for compliant cross-border transfers of EU residents’ personal data, dubbed the EU-U.S. Privacy Shield. But until details of the new vehicle are disclosed, the specific features of the Privacy Shield remain murky.
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The Eiffel Tower and the Statue of LibertyOnly minutes passed between first learning of the Paris attacks and confirming that our son, studying abroad in France, was safe. But it seemed to last a lifetime. My wife and I were with him in Paris just two weeks earlier, strolling happily a few blocks from where slaughter would soon visit the Bataclan Concert Hall and La Belle Equipe. Then, like a sick, twisted Groundhog Day, it felt like 9/11 all over again.

The Paris terrorism has rekindled an ongoing debate over government surveillance power, personal privacy, and cybersecurity. In this crucial, consequential debate, it behooves us to remember that terrorism’s goal is to trigger emotional, extreme reaction, and that perspective and balance are the antitheses of violent radicalism.
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You’ve no doubt heard that on Tuesday the European Court of Justice declared the U.S.- EU Safe Harbor invalid. Under European law, the transfer of EU citizens’ personal data to a third country may only occur if the third country ensures adequate protection of that data. A European Commission decision in 2000 declared the United States’ laws and policies provided such adequate protection, through the vehicle of the U.S.- EU Safe Harbor FrameworkNearly 4,500 U.S. companies partake of Safe Harbor protected status – at least until this week’s European Court of Justice’s ruling pulled the plug.

As a result of this ruling, each of the European Union’s 28 national data protection authorities (“DPAs”) now has the power to establish its own rules and regulations for data transfers. Although the U.S. and the European Commission are engaged in continuing negotiations for “Safe Harbor 2.0,” there is no certainty about when the new framework will be established, or even what the framework will be. In the meantime, the question looms – what will the national DPAs do?
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