Validity of Trans-Border Data Flows Between the EEA and U.S. at Risk (Again)
President Trump’s executive orders in the furtherance of his pro-business agenda puts the EU-U.S. Data Protection Framework at risk of being invalidated. The Data Protection Framework (DPF) was the third attempt at an agreement between the European Union and the United States to permit the flow of personal data from the European Economic Area to the United States without requiring the use of the EU Standard Contractual Clauses. It was put in place after the European Court of Justice invalidated the U.S.-EU Safe Harbor in 2015 and the EU-U.S. Privacy Shield in 2020 after they were challenged as not providing enough protection for personal data from the European Economic Area.
The DPF was agreed to after heavy negotiation between the United States and the European Commission. One of the key factors in that approval was President Biden’s executive order to have the Privacy and Civil Liberties Oversight Board (PCLOB) provide independent oversight of U.S. mass surveillance laws. President Trump’s efforts to effectively fire three Democratic members brings the membership below its quorum and, according to Max Schrem’s NYOB organization, puts its independence at risk.
If the DPF is invalidated, the flow of personal data between the EEA and the U.S. would have to immediately stop or switch to another mechanism for facilitation, such as the EU Standard Contractual Clauses or similar standard contractual clauses in the UK or Switzerland. However, the NYOB or other organizations could bring challenges to the ability of the Standard Contractual Clauses to provide a level of protection for personal data that is essentially equivalent to that provided under the GDPR – similar to the challenges that invalidated the U.S.-EU Safe Harbor and the EU-U.S. Privacy Shield. If that happens, it will effectively shut down all personal data flows from the EEA to the U.S., which would have a significant impact on the U.S. economy.
President Donald Trump’s reported decision to fire the three Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) is raising concerns about the future of the hard-won trans-Atlantic data privacy framework (DPF), privacy experts said. It’s not yet clear what impact Trump’s Executive Order might have, however, and the European Commission is monitoring the situation, it said.
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