A Look into the Data Privacy Crystal Ball: A Survey of Possible Outcomes for the EU-U.S. Privacy Shield Agreement

By Linn, Emily | Vanderbilt Journal of Transnational Law, November 2017 | Go to article overview

A Look into the Data Privacy Crystal Ball: A Survey of Possible Outcomes for the EU-U.S. Privacy Shield Agreement


Linn, Emily, Vanderbilt Journal of Transnational Law


                  TABLE OF CONTENTS    I. INTRODUCTION                                  1312  II. BACKGROUND                                    1314     A. Differing Notions of Privacy in the        United States and the European Union        1315     B. Standard for Transfer of EU Data:        Data Protection Directive & General        Data Protection Regulation                  1318 III. LEARNING FROM THE PAST                        1320      A. EU-U.S. Safe Harbor Agreement              1320      B. Safe Harbor Invalidated: The Schrems         Holding                                    1324  IV. ANALYSIS OF THE PRESENT: EU-U.S. PRIVACY      SHIELD AGREEMENT                              1326      A. How the EU-U.S. Privacy Shield Framework         Operates                                   1328      B. Improvements in the Privacy Shield         1330         1. Data Protection Mechanisms              1330         2. Redress Mechanisms                      1332         3. Oversight Mechanisms                    1334      C. Remaining Weaknesses and Potential Issues         Threatening the Privacy Shield             1336         1. Lack of Protection from US            Surveillance                            1336         2. External Factors                        1337             i. US Political Climate: Trump                Administration                      1337            ii. EU Political Climate: Brexit        1342   V. LOOKING TOWARD THE FUTURE: THE POSSIBLE      OUTCOMES FOR THE EU-U.S. PRIVACY SHIELD       1344      A. First Privacy Shield Challenge: Annual         Joint Review                               1344      B. Upcoming Privacy Shield Challenge:         Judicial Action by the CJEU                1346      C. Alternative Mechanisms to the Privacy         Shield                                     1348      D. Privacy Shield Reimagined: EU-U.S.         Business Privacy Shield                    1352         1. Regulatory Examples: Fair Labor            Association and Worker's Rights            Consortium                              1353         2. Replacement of US Government Role            with a Data Privacy NGO                 1355         3. Advantages to Data Privacy NGO            Enforcement of EU-U.S. Business            Privacy Shield                          1356  VI. CONCLUSION                                    1358 

I. INTRODUCTION

Personal data is a currency of the modern age and a valuable commodity in an increasingly electronic world. However, unlike traditional forms of currency, personal data inherently relies on private information about real people, occupying a sacred space that warrants heightened protection. The dominant exchange of this ubiquitous personal data currency occurs between EU member states and the United States. Despite this, the United States and the European Union historically have fallen short in reaching a consensus about the permissible process by which EU personal data can be transferred to the United States. (1)

On October 6, 2015, the Court of Justice of the European Union (CJEU) issued a decision invalidating Safe Harbor, the previous EU-U.S. privacy agreement that permitted data transfer between the European Union and the United States. In invalidating the agreement, CJEU explained that Safe Harbor was not compliant with the Data Protection Directive and US enforcement of the agreement prioritized US concerns over the Safe Harbor Principles. (2) Less than a year later, the European Commission (EC) approved a new data sharing agreement, the EU-U.S. Privacy Shield (Privacy Shield), which went into effect on August 1, 2016. (3) While the Privacy Shield is an improvement on the protection afforded to EU citizens and their personal data, the framework of the new agreement is not immune to challenge by the European Union and faces an uncertain future.

This Note investigates the range of possible outcomes that could result from the Privacy Shield. …

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A Look into the Data Privacy Crystal Ball: A Survey of Possible Outcomes for the EU-U.S. Privacy Shield Agreement
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