Privacy Shield fails to provide certainty for users, say EU Data Protection Authorities

Brussels, BE – Earlier today the Article 29 Working Party released its draft opinion of the new Privacy Shield data-transfer arrangement between the EU and the US. The arrangement seeks to replace the “Safe Harbour” mechanism that was invalidated by the Court of Justice of the European Union because it failed to comply with EU law and protect fundamental rights.

The Working Party 29 welcomed the progress made in the Privacy Shield to increase transparency for transatlantic data transfers compared to the Safe Harbour, but otherwise asked the European Commission to reconsider the agreement regarding a wide range of issues. In particular, the Working Party pointed out inconsistencies between the several documents and annexes of the draft Privacy Shield; requested further safeguards on rules for onward transfer of data; and deemed the prospect of bulk data collection “unacceptable”.

“Access Now shares the concerns highlighted by Working Party 29 in its opinion,” said Estelle Massé, EU Policy Analyst at Access Now. “If there are doubts about the arrangement’s compliance with fundamental rights, it must be sent to the Court of Justice of the European Union for scrutiny. We had to wait eight years for the Data Retention Directive to be invalidated, and 15 years for the Safe Harbour to be repealed, but even then, no reparation has been possible for the damages done to fundamental rights.”

European regulators and lawmakers have questioned the legal certainty of the supporting documents for Privacy Shield, yet it has garnered significant support from business. Access Now supports finding a way forward for transatlantic data flows, but as we have long argued, any new arrangement needs to protect human rights, including the right of data protection as recognised in the EU Charter of Fundamental Rights.

Access Now has led a transatlantic coalition of privacy groups in a civil society letter outlining the primary problems of the Privacy Shield agreement. The Working Party 29 committee has now highlighted many of the same key issues, specifically regarding bulk collection; the surveillance conducted by the US and the EU member states; the lack of independence of the Ombudsperson; and the overall flaws in the mechanisms for individuals to seek redress.

“The free movement of data is at the heart of a free and open internet, but ensuring that human rights are protected within that movement is essential,” added Amie Stepanovich, US Policy Manager at Access Now. “A ‘good for right now’ agreement isn’t enough — we need a rights-respecting mechanism that will endure scrutiny in order to ensure that individuals have certainty about how their data will be respected.”

Access Now urges the Commission to modify the Privacy Shield draft in line with the Working Party opinion and essential guarantees for fundamental rights.


Media contact

Amie Stepanovich, US Policy Manager, Access Now

[email protected]

Estelle Massé, EU Policy Analyst, Access Now

[email protected]