Privacy & Information Security Law Blog

On December 20, 2018, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to clarify the effect of the UK’s planned withdrawal from the EU on March 29, 2019. The FAQs provide information on the steps Privacy Shield participants must take to receive personal data from the UK in reliance on the Privacy Shield after Brexit.

The European Commission (“Commission”), the European Parliament (“Parliament”) and the Council of the European Union reached an agreement earlier this month regarding changes to the Proposal for a Regulation on ENISA, the “EU Cybersecurity Agency”, and repealing Regulation (EU) 526/2013, and on Information and Communication Technology Cybersecurity Certification (the “Cybersecurity Act”). The agreement empowers the EU Cybersecurity Agency (known as European Union Agency for Network and Information and Security, or “ENISA”) and introduce an EU-wide cybersecurity certification for services and devices.

On December 19, 2018, the European Commission (the “Commission”) issued a press release regarding the publication of the Commission’s second annual review of the functioning of the EU-U.S. Privacy Shield (the “Report”).

On November 9, 2018, the European Commission (“the Commission”) submitted comments to the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) in response to its request for public comments on developing the administration’s approach to consumer privacy.

On October 19, 2018, European Commissioner for Justice, Consumers and Gender Equality Věra Jourová and U.S. Secretary of Commerce Wilbur Ross issued a joint statement regarding the second annual review of the EU-U.S. Privacy Shield framework, taking place in Brussels beginning October 18. The statement highlights the following:

On September 5, 2018, the European Commission (the “Commission”) announced in a press release the launch of the procedure to formally adopt the Commission’s adequacy decision with respect to Japan.

Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:

• Data processors. When ...

On July 10, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the European Data Protection Board (the “EDPB”) on its draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the GDPR (the “Guidelines”). The Guidelines were adopted by the EDPB on May 25, 2018, for public consultation.

On July 12, 2018, British Prime Minister Theresa May presented her Brexit White Paper, “The Future Relationship Between the United Kingdom and the European Union,” (the "White Paper”) to Parliament. The White Paper outlines the UK’s desired future relationship with the EU post-Brexit, and includes within its scope important data protection-related issues, including digital trade, data flows, cooperation for the development of Artificial Intelligence (“AI”), and the role of the Information Commissioner’s Office (“ICO”), as further discussed below:

On July 17, 2018, the European Union and Japan successfully concluded negotiations on a reciprocal finding of an adequate level of data protection, thereby agreeing to recognize each other’s data protection systems as “equivalent.” This will allow personal data to flow safely between the EU and Japan, without being subject to any further safeguards or authorizations. 

On July 5, 2018, the European Parliament issued a nonbinding resolution (“the Resolution”) that calls on the European Commission to suspend the EU-U.S. Privacy Shield unless U.S. authorities can “fully comply” with the framework by September 1, 2018. The Resolution states that the data transfer mechanism does not provide the adequate level of protection for personal data as required by EU data protection law. The Resolution takes particular aim at potential access to EU residents’ personal data by U.S. national security agencies and law enforcement, citing the passage of the CLOUD Act as having “serious implications for the EU, as it is far-reaching and creates a potential conflict with the EU data protection laws.”

On January 10, 2017, the European Commission adopted a proposal for a Regulation on Privacy and Electronic Communications (“ePR”). On June 8, 2018, the Council of the European Union’s Bulgarian Presidency presented a progress report (the “Report”) on the draft ePR to the Transport, Telecommunications and Energy Council. The Report reflects on the amendments presented in the May 2018 Examination of the Presidency text. The Report is split into two sections: Annex I, a progress report, and Annex II, questions for the policy debate.

On March 29, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the Article 29 Working Party (the “Working Party”) on its draft guidelines on the accreditation of certification bodies under the GDPR (the “Guidelines”). The Guidelines were adopted by the Working Party on February 6, 2018, for public consultation.

On March 26, 2018, the U.S. Department of Commerce posted an update on the actions it has taken between January 2017 and March 2018 to support the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”). The update details measures taken in support of commercial and national security issues relating to the Privacy Shield.

On January 24, 2018, the European Commission issued a communication to the European Parliament and the Council (the “Communication”) on the direct application of the EU General Data Protection Regulation (“GDPR”). The Communication (1) recounts novel elements of the GDPR that create stronger protections for individuals and new opportunities for organizations; (2) reviews preparatory work undertaken to date for GDPR implementation; (3) outlines remaining steps for successful preparation; and (4) outlines measures the European Commission intends to take up until May 25, 2018.

As we previously reported, this October, the EU Commission released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework. On November 28, 2017, the Article 29 Data Protection Working Party (the “Working Party”) adopted an opinion on the review (the “Opinion”). While the Opinion notes that the Working Party “welcomes the various efforts made by US authorities to set up a comprehensive procedural framework to support the operation of the Privacy Shield,” the Opinion also identifies some remaining concerns and ...

The Centre for Information Policy Leadership at Hunton & Williams LLP (“CIPL”) recently submitted responses to the Irish Data Protection Commissioner (IDPC Response) and the CNIL (CNIL Response) on their public consultations, seeking views on transparency and international data transfers under the EU General Data Protection Regulation (“GDPR”).

The responses address a variety of questions posed by both data protection authorities (“DPAs”) and aim to provide insight on and highlight issues surrounding transparency and international transfers.

On October 18, 2017, the EU Commission (“Commission”) released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework (collectively, the “Report”). The Report states that the Privacy Shield framework continues to ensure an adequate level of protection for personal data that is transferred from the EU to the U.S. It also indicates that U.S. authorities have put in place the necessary structures and procedures to ensure the proper functioning of the Privacy Shield, including by providing new redress possibilities for EU individuals and instituting appropriate safeguards regarding government access to personal data. The Report also states that Privacy Shield-related complaint-handling and enforcement procedures have been properly established.

Hunton & Williams LLP is pleased to announce that Lisa Sotto, chair of the firm’s top-ranked Global Privacy and Cybersecurity practice and managing partner of the firm’s New York office, has been selected as an arbitrator in connection with the EU-U.S. Privacy Shield Framework Binding Arbitration Program.

On September 18, 2017, the European Commission (“Commission”) and U.S. Department of Commerce (“Department”) kicked off their first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”).  To aid in the review, the Department invited a few industry leaders, including Hunton & Williams’ partner Lisa J. Sotto, who chairs the firm’s Global Privacy and Cybersecurity practice and the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, to speak about their experiences during the first year of the Privacy Shield.

On September 8, 2017, the Council of the European Union published its proposed revisions to the draft E-Privacy Regulation (“EPR”), which was first published by the European Commission in January 2016. The revisions have been made based on written comments and discussions involving the Working Party for Telecommunications and Information Society (“WP TELE”) and serve as a discussion for further meetings of the group in late September 2017.

On September 13, 2017, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy published a Joint Communication to the European Parliament and the Council of the European Union on “Resilience, Deterrence and Defence: Building strong cybersecurity for the EU” (“Joint Communication”). This Joint Communication is part of a package of EU documents adopted on the same date aimed at delivering a stronger EU response to cyber attacks. In particular, the Joint Communication puts forward targeted measures to (1) build greater EU resilience to cyber attacks, (2) better detect cyber attacks, and (3) strengthen international cooperation on cybersecurity.

On September 11, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on the Proposal for an ePrivacy Regulation (the “White Paper”). The White Paper comments on the European Commission’s proposal to replace and modernize the privacy framework for electronic communications contained in the current ePrivacy Directive and to align it with the EU General Data Protection Regulation (“GDPR”).

On August 24, 2017, APEC issued a statement on the renewed talks between APEC and the EU on creating interoperability between the APEC Cross-Border Privacy Rules (“CBPR”) and the EU data transfer mechanisms.

On June 7, 2017, the European Commission published a paper signalling the EU’s intention to increase its role in directing cybersecurity policy and responses across its member states. The increasing threat posed by cyber attacks is highlighted in the EU Commission’s Reflection Paper on the Future of European Defence, which builds its case for closer union in respect of defense efforts.

With just under one year to go before the EU General Data Protection Regulation (“GDPR”) becomes law across the European Union, the UK Information Commissioner’s Office (“ICO”) has continued its efforts to help businesses prepare for the new law. The ICO also has taken steps to address its own role post-Brexit.

On May 29, 2017, a high-level EU Commission official and Politico reported that the primary objective of the first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”) is not to obtain more concessions from the U.S. regarding Europeans’ privacy safeguards, but rather to monitor the current U.S. administration’s work and steer U.S. privacy debates to prevent privacy safeguards from deteriorating. On March 31, 2017, the EU Commissioner for Justice, Věra Jourová, announced that the joint review will take place in September 2017.

On April 12, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a discussion paper on Certifications, Seals and Marks under the GDPR and Their Roles as Accountability Tools and Cross-Border Data Transfer Mechanisms (the “Discussion Paper”). The Discussion Paper sets forth recommendations concerning the implementation of the EU General Data Protection Regulation’s (“GDPR’s”) provisions on the development and use of certification mechanisms. The GDPR will become effective on May 25, 2018. The EU Commission, the Article 29 Working Party, individual EU data protection authorities (“DPAs”) and other stakeholders have begun to consider the role of GDPR certifications and how to develop and implement them. CIPL’s Discussion Paper is meant as formal input to that process.

On April 4, 2017, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the Proposed Regulation of the European Commission for the ePrivacy Regulation (the “Proposed ePrivacy Regulation”). The Proposed ePrivacy Regulation is intended to replace the ePrivacy Directive and to increase harmonization of ePrivacy rules in the EU. A regulation is directly applicable in all EU Member States, while a directive requires transposition into national law. 

On February 15, 2017, the European Data Protection Supervisor (“EDPS”) published its Priorities for 2017 (the “EDPS Priorities”). The EDPS Priorities consist of a note listing the strategic priorities and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, sorted by level of priority.

On March 6 and 7, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP and over 100 public and private sector participants in CIPL’s GDPR Implementation Project will convene in Madrid, Spain, for CIPL’s third major GDPR implementation workshop.

On February 2, 2017, the UK government published a white paper entitled The United Kingdom’s exit from and new partnership with the European Union (the “white paper”). The white paper strikes a conciliatory tone, making it clear that the UK intends to maintain close ties with the European Union and its 27 remaining Member States after Brexit. A large portion of the white paper is devoted to discussing the issues at the heart of the 2016 Brexit referendum, such as immigration controls, continuing trade with the EU and the protection of individuals’ rights conferred under EU law. Among the rights addressed is the free flow of personal data between the UK and the EU.

On January 10, 2017, the European Commission published a communication addressed to the European Parliament and European Council on Exchanging and Protecting Personal Data in a Globalized World (the “Communication”). The Communication aims to facilitate commercial data flows and foster law enforcement cooperation. In the Communication, the European Commission states that it will:

On January 10, 2017, the European Commission announced the final elements of its long-awaited “digital single market” strategy for Europe. The announcement includes two new proposed EU regulations as well as a European Commission Communication, as described below.

On December 12, 2016, Politico reported that the European Commission intends to replace the e-Privacy Directive with a Regulation. The planned shift from a Directive to a Regulation has important legal consequences under EU law, as it means that instead of creating a floor upon which EU Member States may base the creation of their own versions of the law, a Regulation will create a harmonized set of requirements at the EU level that are directly applicable in the Member States.

A recent update on the Court of Justice of the European Union’s (the “CJEU’s”) website has revealed that Digital Rights Ireland, an Irish privacy advocacy group, has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield (the “Privacy Shield”).

Earlier this month, at a meeting of the Article 31 Committee, the European Commission (“Commission”) unveiled two draft Commission Implementing Decisions that propose amendments to the existing adequacy decisions and decisions on EU Model Clauses.

In September, the Centre for Information Policy Leadership (“CIPL”) held its second GDPR Workshop in Paris as part of its two-year GDPR Implementation Project. The purpose of the project is to provide a forum for stakeholders to promote EU-wide consistency in implementing the GDPR, encourage forward-thinking and future-proof interpretations of key GDPR provisions, develop and share relevant best practices, and foster a culture of trust and collaboration between regulators and industry.  

On July 26, 2016, Isabelle Falque-Pierrotin, the Chairwoman of the Article 29 Working Party of data protection regulators, announced that EU data protection regulators will not challenge the adequacy of the EU-U.S. Privacy Shield (“Privacy Shield”) for at least one year (i.e., until after summer 2017). The European Commission is scheduled to conduct a mandatory review of the adequacy of the Privacy Shield by May 2017.

On July 12, 2016, after months of negotiations and criticism, the EU-U.S. Privacy Shield (“Privacy Shield”) was officially adopted by the European Commission and the Department of Commerce. Similar to the Safe Harbor, companies must certify their compliance with the seven principles comprising the Privacy Shield to use the Shield as a valid data transfer mechanism. Hunton & Williams partner Lisa J. Sotto and associate Chris D. Hydak recently published an article in Law360 entitled “The EU-U.S. Privacy Shield: A How-To Guide.” In the article, Lisa and Chris detail the ...

On July 12, 2016, the EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, and U.S. Secretary of Commerce Penny Pritzker announced the formal adoption of the EU-U.S. Privacy Shield (the “Privacy Shield”) framework, composed of an Adequacy Decision and accompanying Annexes.

On July 8, 2016, EU representatives on the Article 31 Committee approved the final version of the EU-U.S. Privacy Shield (“Privacy Shield”) to permit transatlantic transfers of personal data from the EU to the U.S.

On July 6, 2016, the European Parliament adopted the Directive on Security of Network and Information Systems (the “NIS Directive”), which will come into force in August 2016. EU Member States will have 21 months to transpose the NIS Directive into their national laws. The NIS Directive is part of the European Commission’s cybersecurity strategy for the European Union, and is designed to increase cooperation between EU Member States on cybersecurity issues.

On July 5, 2016, the European Commission announced the launch of a new public-private partnership (the “Partnership”) on cybersecurity, as part of its Digital Single Market and EU Cybersecurity strategies. In this context, the European Commission released several documents, including a Commission Decision establishing a contractual arrangement of the new Partnership for cybersecurity industrial research, and a Staff Working Document on the preparation activities for the Partnership.

On June 29, 2016, Politico reported that it has obtained updated EU-U.S. Privacy Shield documents following the latest negotiations between U.S. and EU government authorities. Certain aspects of the prior Privacy Shield framework were criticized by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor.

According to Bloomberg BNA, the EU-U.S. Privacy Shield framework could be approved by the European Commission in early July. The Privacy Shield is a successor framework to the Safe Harbor, which was invalidated by the European Court of Justice in October 2015. Certain provisions of the Privacy Shield documents, previously released by the European Commission on February 29, 2016, have been subjected to criticism by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor. According to Bloomberg BNA, the previously released draft adequacy decision, one of the Privacy Shield documents released on February 29, 2016, is expected to be modified.

On May 26, 2016, the European Parliament approved a resolution calling for the European Commission to reopen negotiations with U.S. authorities on the EU-U.S. Privacy Shield (“Privacy Shield”), and to implement the recommendations of the Article 29 Working Party (“Working Party”) on the draft Privacy Shield adequacy decision.

The Working Party had previously published its recommendations in an Opinion regarding the draft decision issued by the European Commission on adequacy of the protection provided by the Privacy Shield. In the Opinion, the Working Party highlighted a number of key issues concerning access to European personal data by law enforcement and government agencies, and also recommended a number of changes to ensure that European citizens’ data are adequately protected.

On May 23, 2016, half of the EU Member States sent a letter to the European Commission and the Netherlands (which holds the rotating presidency), seeking the removal of barriers to the free flow of data both within and outside the EU to benefit the EU from new data-driven technologies, according to Reuters and EurActive.com.

On May 17, 2016, the European Council adopted its position at first reading of the Network and Information Security Directive (the “NIS Directive”). The NIS Directive was proposed by the European Commission on February 7, 2013, as part of its cybersecurity strategy for the European Union, and is designed to increase cooperation between EU Member States on cybersecurity issues.

The NIS Directive will impose security obligations on “operators of essential services” in critical sectors and “digital service providers.” These operators will be required to take measures to manage cyber risks and report major security incidents.

On March 16, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP co-hosted a one-day workshop in Amsterdam, Netherlands, together with the Dutch Ministry of Security and Justice, to kick off CIPL’s new long-term project on the implementation of the EU General Data Protection Regulation (“GDPR”).

On April 14, 2016, after four years of drafting and negotiations, the long awaited EU General Data Protection Regulation (“GDPR”) has been adopted at the EU level. Following the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ vote earlier this week and the EU Parliament in plenary session, the GDPR is now officially EU law and will directly apply in all EU countries, replacing EU and national data protection legislation.

On April 13, 2016, the Article 29 Working Party (the “Working Party”) published its Opinion on the EU-U.S. Privacy Shield (the “Privacy Shield”) draft adequacy decision. The Privacy Shield was created to replace the previous Safe Harbor framework invalidated by the Court of Justice of the European Union (“CJEU”) in the Schrems decision. The Working Party also published a Working Document on the justification for interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (European Essential Guarantees).

On April 11, 2016, the European Commission launched a public consultation to evaluate and review Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector, also known as the e-Privacy Directive.

Technological advances and the advent of the EU General Data Protection Regulation (“GDPR”) have prompted the European Commission to review the e-Privacy Directive, which was last updated in 2009.

After much debate, the final version of the EU General Data Protection Regulation (“GDPR”) is expected to be adopted by the European Parliament this week and to take effect in early 2018. The GDPR will significantly change EU data protection law in several areas, affecting all businesses in the energy, financial, health care, real estate, manufacturing, retail, technology and transportation industries, among others. To assist in-house lawyers and privacy professionals with understanding the new GDPR and planning ahead for implementation, Hunton & Williams’ Privacy and Cybersecurity practice lawyers have released The EU General Data Protection Regulation, a Guide for In-House Lawyers covering these strategic areas:

On March 16, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP will co-host a one-day workshop in Amsterdam, Netherlands, together with the Dutch Ministry of Security and Justice, to kick off a new long-term CIPL project on the implementation of the EU General Data Protection Regulation (“GDPR”).

On March 9, 2016, Hunton & Williams’ Global Privacy and Cybersecurity practice lawyers released a management guide on the EU General Data Protection Regulation (“GDPR”), entitled “Overview of the EU General Data Protection Regulation,” addressing the key impacts the new law will have on businesses. This high-level management guide is intended to provide companies with a roadmap to the Regulation, focusing on topics such as expanded territorial scope, data breach notification rules, the One-Stop Shop concept and the right to be forgotten.

On February 29, 2016, the European Commission issued the legal texts that will implement the EU-U.S. Privacy Shield. These texts include a draft adequacy decision from the European Commission, Frequently Asked Questions and a Communication summarizing the steps that have been taken in the last few years to restore trust in transatlantic data flows.

The agreement in support of the new EU-U.S. transatlantic data transfer framework, known as the EU-U.S. Privacy Shield, was reached on February 2, 2016, between the U.S. Department of Commerce and the European Commission. Once adopted, the adequacy decision will establish that the safeguards provided when transferring personal data pursuant to the new EU-U.S. Privacy Shield are equivalent to the EU data protection standards. In addition, the European Commission has stated that the new framework reflects the requirements that were set forth by the Court of Justice of the European Union (the “CJEU”) in the recent Schrems decision.

On February 24, 2016, President Obama signed the Judicial Redress Act (the “Act”) into law. The Act grants non-U.S. citizens certain rights, including a private right of action for alleged privacy violations that occur in the U.S. The Act was signed after Congress approved an amendment that limits the right to sue to only those citizens of countries which (1) permit the “transfer of personal data for commercial purposes” to the U.S., and (2) do not impose personal data transfer policies that “materially impede” U.S. national security interests.

On February 11, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the 2016 action plan for the implementation of the EU General Data Protection Regulation (the “Regulation”). The action plan outlines the priorities for the Working Party in light of the transition to a new legal framework in Europe and the introduction of the European Data Protection Board (the “EDPB”). Accompanying the statement is a document, Work Program 2016-2018, detailing the tasks of the Working Party’s subgroups during the transitional period between the adoption of the Regulation and its implementation.

On February 3, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the consequences of the ruling of the Court of Justice of the European Union (the “CJEU”) in the Schrems case invalidating the European Commission’s Safe Harbor Decision.

On February 2, 2016, a new EU-U.S. transatlantic data transfer agreement was reached. Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, presented the new agreement to the European Commission (the “Commission”) today. According to the Commission’s press release, the new agreement will be called the EU-U.S. Privacy Shield.

On February 1, 2016, Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, told the European Parliament that an agreement on a new U.S.-EU Safe Harbor agreement has not yet been reached. Jourová indicated that an agreement is close, but additional work is needed to finalize it.

According to Bloomberg BNA, Paul F. Nemitz, Director for Fundamental Rights and Union Citizenship at the Directorate-General Justice of the European Commission, said at a privacy conference that he hoped a new U.S.-EU Safe Harbor agreement would be reached by the evening of Monday, February 1, 2016.

On January 28, 2016, the Senate Judiciary Committee passed the Judicial Redress Act (the “Act”), which would give EU citizens the right to sue over certain data privacy issues in the U.S. The Act passed after an amendment was approved which would condition EU citizens’ right to sue on EU Member States (1) allowing companies to transfer personal data to the U.S. for commercial purposes and (2) having personal data transfer policies which do not materially impede the national security interests of the U.S. The vote was initially set to take place on January 21, 2016, but was delayed.

On January 7, 2016, the European Data Protection Supervisor (the “EDPS”) published his Priorities for 2016. The EDPS Priorities consists of a cover note listing the strategic priorities of the EDPS in 2016 and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, per level of priority.

In line with the EDPS Strategy 2015-2019 unveiled in March 2015, the EDPS will set his focus on the following areas of strategic importance:

On December 17, 2015, after three years of drafting and negotiations, the European Parliament and Council of the European Union reached an informal agreement on the final draft of the EU General Data Protection Regulation (the “Regulation”), which is backed by the Committee on Civil Liberties, Justice and Home Affairs.

On December 7, 2015, European negotiators reached an agreement on the draft text of the Network and Information Security Directive (the “NIS Directive”), the first pan-EU rules on cybersecurity. The NIS Directive was first proposed by the European Commission on February 7, 2013, as part of its cybersecurity strategy for the European Union and aims to ensure a uniform level of cybersecurity across the EU.

On November 19, 2015, the French Data Protection Authority (“CNIL”) published guidance, including a set of frequently asked questions, to assist companies that are transferring personal data to the U.S. pursuant to the Safe Harbor framework.

On November 6, 2015, the European Commission published a communication and a Q&A document addressed to the European Parliament and European Council on the transfer of personal data from the EU to the U.S. under EU Data Protection Directive 95/46/EC (the “Directive”), following the decision by the Court of Justice of the European Union invalidating the European Commission’s Safe Harbor Decision.

On Monday, November 2, 2015, Hunton & Williams LLP’s Centre for Information Policy Leadership (“CIPL”) Senior Policy Advisor, Fred H. Cate, moderated an academic panel on The Data Dilemma: A Transatlantic Discussion on Privacy, Security, Innovation, Trade, and the Protection of Personal Data in the 21st Century. The event was sponsored by Indiana University and took place at the CIEE Global Institute in Berlin, Germany.

On Monday, October 26, 2015, EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, gave a speech before the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) on the recent ruling by the Court of Justice of the European Union (the “CJEU”) that invalidated the European Commission’s Safe Harbor Decision. The EU Commissioner welcomed the Article 29 Working Party’s statement and, in particular, its support for a new Safe Harbor framework by January 31, 2016. However, the EU Commissioner called for more clarity in the meantime. Accordingly, she announced that the European Commission will soon issue an explanatory document on the consequences of the CJEU’s ruling to provide guidance for businesses on international data transfers.

On October 26, 2015, the German federal and state data protection authorities (the “German DPAs”) published a joint position paper on Safe Harbor and potential alternatives for transfers of data to the U.S. (the “Position Paper”).

On October 20, 2015, at a hearing in the Irish High Court, Irish Data Protection Commissioner Helen Dixon confirmed that she will investigate allegations made by privacy activist Max Schrems concerning Facebook’s transfer of personal data to the U.S. in reliance on Safe Harbor. Dixon welcomed the ruling of the High Court and noted that she would proceed to “investigate the substance of the complaint with all due diligence."

In an article published by E-Commerce Law Reports, Hunton & Williams partners Bridget Treacy and Lisa Sotto discuss the Court of Justice of the European Union’s (the “CJEU’s”) recent ruling invalidating the European Commission’s Safe Harbor Decision.

On October 16, 2015, the Article 29 Working Party (the “Working Party”) issued a statement on the consequences of the recent ruling of the Court of Justice of the European Union (the “CJEU”) invalidating the European Commission’s Safe Harbor Decision.

On October 14, 2015, the data protection authority (“DPA”) in the German state of Schleswig-Holstein (Unabhängiges Landeszentrum für Datenschutz) issued a position paper (the “Position Paper”) on the Safe Harbor Decision of the Court of Justice of the European Union (the “CJEU”).

On October 6, 2015, the Court of Justice of the European Union (the “CJEU”) issued its judgment in the Schrems v. Facebook case, following the Opinion of the Advocate General published on September 23, 2015. In its judgment, the CJEU concluded that:

• The national data protection authorities (“DPAs”) have the power to investigate and suspend international data transfers even where the European Commission (the “Commission”) has adopted a decision finding that a third country affords an adequate level of data protection, such as Decision 2000/520 on the adequacy of the protection provided by the Safe Harbor Privacy Principles (the “Safe Harbor Decision”).
• The Safe Harbor Decision is invalid.

On September 29, 2015, the Court of Justice of the European Union (“CJEU”) announced that it will deliver its judgment in the Schrems vs. Facebook case on October 6, 2015. The CJEU’s judgment will be the final ruling in the case, and comes after the Advocate General’s Opinion regarding Safe Harbor earlier this week.

On September 8, 2015, representatives from the U.S. Government and the European Commission initialed a draft agreement known as the Protection of Personal Information Relating to the Prevention, Investigation, Detection and Prosecution of Criminal Offenses (the “Umbrella Agreement”). The European Commission’s stated aim for the Umbrella Agreement is to put in place “a comprehensive high-level data protection framework for EU-U.S. law enforcement cooperation.” The Umbrella Agreement has been agreed upon amid the ongoing uncertainty over the future of the U.S.-EU Safe Harbor, and was drafted shortly before the release of the September 23 Advocate General’s Opinion in the Schrems v. Facebook litigation. The content of the Umbrella Agreement is in its final form, but its implementation is dependent upon revisions to U.S. law that are currently before Congress.

On September 23, 2015, Advocate General of the European Court of Justice Yves Bot issued his Opinion in the case of Max Schrems, which is currently pending before the Court of Justice of the European Union (the “CJEU”). In the opinion, the Advocate General provided his views concerning two key issues related to the U.S.-EU Safe Harbor Framework: (1) the powers of national data protection authorities to investigate and suspend international data transfers made under the Safe Harbor Framework and (2) the ongoing validity of the European Commission’s Safe Harbor adequacy decision (Decision 2000/520).

On August 14 and August 26, 2015, the Conference of the Data Protection Commissioners of the Federal Government and the Federal States (Länder) issued a detailed position paper (“Position Paper”) and a press release on the main issues for the trilogue negotiations on the proposed EU General Data Protection Regulation (the “Regulation”). In the Position Paper and press release, the participating German Data Protection Commissioners (“German DPAs”) request the trilogue partners to focus on the following issues:

On July 27, 2015, Giovanni Buttarelli, the European Data Protection Supervisor (“EDPS”), published Opinion 3/2015 on the reform of Europe’s data protection laws, intended to “assist the participants in the trilogue in reaching the right consensus on time.” The Opinion sets out the EDPS’ vision for the regulation of data protection, re-stating the case for a framework that strengthens the rights of individuals and noting that “the time is now to safeguard individuals’ fundamental rights and freedoms in the data-driven society of the future.”

On June 18, 2015, the Article 29 Working Party (the “Working Party”) published letters regarding the proposed EU General Data Protection Regulation (the “Regulation”) addressed to representatives of the Council of the European Union, the European Parliament and the European Commission. Attached to each of the letters is an Appendix detailing the Working Party’s opinion on the core themes of the Regulation.

The Council of the European Union has agreed on a general approach to the proposed EU General Data Protection Regulation (the “Regulation”). This marks a significant step forward in the legislative process, and the Council’s text will form the basis of its “trilogue” negotiations with the European Parliament and the European Commission. The aim of the trilogue process is to achieve agreement on a final text of the Regulation by the end of 2015. The first trilogue meeting is expected to take place on June 24, 2015.

On June 1, 2015, the Group of the European People’s Party in the European Parliament released an updated timetable for agreeing on the proposed EU General Data Protection Regulation (the “Regulation”). The European Commission, European Parliament and the Council of the European Union will soon enter multilateral negotiations, known as the “trilogue,” to agree on the final text of the proposed Regulation.

Hunton & Williams’ EU Privacy and Cybersecurity practice lawyers recently authored The Proposed EU General Data Protection Regulation – A guide for in-house lawyers (the “Guide”), addressing the key impacts of the forthcoming changes to EU data protection law. Current EU data protection law is based on the EU Data Protection Directive 95/46/EC (the “Directive”), which was introduced in 1995. An updated and more harmonized data protection law, in the form of a Regulation, has been proposed by the EU’s legislative bodies to replace the Directive. The Guide is intended to assist in-house lawyers in understanding the likely impact of the Regulation on businesses. While still under negotiation, the Regulation will significantly change the landscape of EU privacy and data protection in several key areas, including:

On February 5, 2015, the Article 29 Working Party (the “Working Party”) published a letter that responds to a request of the European Commission to clarify the scope of the definition of health data in connection with lifestyle and wellbeing apps. In the annex to this letter, the Working Party identifies criteria to determine when personal data qualifies as “health data,” a special category of data receiving enhanced protection under the EU Data Protection Directive 95/46/EC (the “Directive”). The Working Party further discusses the current legal regime for the processing of such health data and provides its view on the requirements for further processing of health data for historical, statistical and scientific research under the Directive. The letter also includes the Working Party’s recommendations for the regime that should be provided in the proposed EU General Data Protection Regulation (the “Proposed Regulation”).

On December 8, 2014, the Article 29 Working Party (the “ Working Party”) and the French Data Protection Authority (the “CNIL”) organized the European Data Governance Forum, an international conference centered around the theme of privacy, innovation and surveillance in Europe. The conference concluded with the presentation of a Joint Statement adopted by the Working Party during its plenary meeting on November 25, 2014.

On November 26, 2014, the Article 29 Working Party (the “Working Party”) released a Working Document providing a cooperation procedure for issuing common opinions on whether “contractual clauses” comply with the European Commission’s Model Clauses (the “Working Document”).

On November 27, 2014, the European Parliament announced that it will appoint Giovanni Buttarelli as the new European Data Protection Supervisor (“EDPS”), and Wojciech Wiewiórowski as the Assistant Supervisor. The announcement has been expected since the Parliament’s Committee on Civil Liberties, Justice and Home Affairs voted on October 20, 2014 for Buttarelli and Wiewiórowski to be the Parliament’s leading candidates for the two positions. The final step of the process is for the Parliament and the Council of the European Union to jointly sign a nomination decision, after which Buttarelli and Wiewiórowski will formally take up their new roles.

This week, the Article 29 Working Party (“Working Party”) prepares to debate various proposals on the “one-stop-shop” mechanism under the proposed EU General Data Protection Regulation (“Regulation”). Hunton & Williams’ Global Privacy and Cybersecurity practice and its Centre for Information Policy Leadership submitted a strategy paper on the one-stop-shop to the Working Party. The paper proposes a methodology for selecting and defining the role of a lead regulatory authority with the objective of making the one-stop-shop more operational, flexible and viable. The work draws on a more detailed article published on November 3, 2014, by Hunton & Williams senior attorney Rosemary Jay in the magazine for the Society for Computers and Law, entitled The “One Stop Shop” – Working in Practice.

The Council of the European Union has published proposed revisions to the compliance obligations of data controllers and data processors included in Chapter IV of the forthcoming EU General Data Protection Regulation (“Regulation”). This proposal was led by the current Italian Presidency and the revisions reflect input from representatives of the national governments of the EU Member States.

On September 18, 2014, the Article 29 Working Party (the “Working Party”) announced its decision to establish a common approach to the right to be forgotten (the “tool-box”). This tool-box will be used by all EU data protection authorities (“DPAs”) to help address complaints from search engine users whose requests to delete their search result links containing their personal data were refused by the search engines. The development of the tool-box follows the Working Party’s June 2014 meeting discussing the consequences of the European Court of Justice’s judgment in Costeja of May 13, 2014.

On September 16, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program covered a number of privacy and data protection topics, including updates in the EU and Germany, highlights on the UK Information Commissioner’s Office annual report and an APEC update.

The Article 29 Working Party (the “Working Party”) recently released its August 1, 2014 statement providing recommendations on the actions that EU Member States should take in light of the European Court of Justice’s April 8, 2014 ruling invalidating the EU Data Retention Directive (the “Ruling”).

On August 19, 2014, the German Federal Ministry of the Interior published a revised draft cybersecurity law (the “Draft Law”). An earlier version of the law was published in March 2013. The Draft Law is intended to serve as a cornerstone of Germany’s recently-announced digital agenda.

On July 30, 2014, the European Commission announced two new EU standards to help users of Radio Frequency Identification (“RFID”) smart chips and systems comply with both EU data protection requirements and the European Commission’s 2009 Recommendation on RFID. Among other suggestions, the Recommendation discussed the development of a common European symbol or logo to indicate whether a product uses a smart chip. One of the new standards will provide companies with a framework for the design and display of such a logo. The logo will inform consumers of the presence of RFID chips (for example, when using electronic travel passes or purchasing items with RFID tags). The Commission reiterated that such smart chips should be deactivated by default immediately, and free of charge, at the point of sale.

On June 26, 2014, the European Commission issued guidelines on the standardization of service level agreements for cloud services providers (the “Guidelines”). In the context of the European Cloud Computing Strategy, launched by the European Commission in September 2012, the Guidelines focus on security and data protection in the cloud. They are based on the understanding that standardization will improve the clarity of service level agreements (“SLAs”) for cloud services in the European Union.

On June 23, 2014, the Article 29 Working Party (the “Working Party”) published its Opinion 7/2014 on the protection of personal data in Québec (the “Opinion”). In this Opinion, the Working Party provides its recommendations to the European Commission on whether the relevant provisions of the Civil Code of Québec and the Québec Act on the Protection of Personal Information in the Private Sector (the “Québec Privacy Act”) ensure an adequate level of protection for international data transfers in accordance with the EU Data Protection Directive 95/46/EC (the “Directive”). Under the Directive, strict conditions apply to personal data transfers to countries outside the European Economic Area that are not considered to provide an adequate level of data protection.

On June 6, 2014, Viviane Reding, Vice-President of the European Commission and EU Commissioner for Justice, outlined the progress that has been made with respect to the proposed EU General Data Protection Regulation (the “Proposed Regulation”) in a meeting of the Council of the European Union, acting through the Justice Council (the “Council”). In particular, the Council has agreed on two important aspects of the Proposed Regulation.