The invalidation of Safe Harbor and then Privacy Shield has seriously impacted transatlantic transfers of personal data. It has left thousands of American and european companies in a state of uncertainty. A first solution to this problem has just appeared. However, it will first have to pass various stages before being effectively adopted in europe.
U.S. President Joe Biden has just adopted an executive order concerning the transit of personal information between europe and the United States. Signed on October 7, this text marks the culmination of discussions with the european Union (EU) over many months. It will fill the legal void that thousands of companies on both sides of the Atlantic are currently facing.
This problem also affects many independent consultants in the IT . Professionals who can indeed look for IT freelance missions with organizations based in the United States. To find them, they have several options: prospecting directly with the desired company, visiting specialized platforms, etc.
Ratification of the text by Brussels will take place in 2023 at the earliest
This decree confirms the agreement in principle reached with Brussels to replace the Privacy Shield . Regulating transatlantic data transfers, the latter was annulled by the EU Court of Justice in 2020. This institution had already taken the same decision in 2015 with the Safe Harbor its predecessor. According to her, the protection of european citizens was insufficient when their personal information was transmitted to servers of American companies. This mistrust was mainly due to the fact that the United States was conducting surveillance operations.
After Joe Biden issued the executive order, Brussels will review the pending agreement shortly. The european Executive will establish in writing a adequacy decision . This mechanism is provided for in Article 45 of the General Data Protection Regulation (GDPR). This decision will then be analyzed by the Member States and the european Data Protection Committee (EDPS). Even if they decide against the text, the european Commission has the power to publish it .
Initially, this publication was announced for this fall. However, it will obviously be postponed until the summer of next year. Companies will then be able to invoke this agreement in the event of a dispute over information exchanges between europe and the United States .
Some distrust of the proposed agreement
Joe Biden’s executive order establishes a new framework for confidentiality of information on both sides of the Atlantic. It will resolve the questioning of the legality of corporate activities, especially those of Internet leaders such as:
- Amazon ;
- Facebook ;
- Google.
For these multinationals, the exchange, processing and exploitation of information between europe and the United States is of paramount importance.
The agreement in preparation therefore establishes safeguards to ensure respect for the personal information of european citizens. It also creates a new “Data Protection Review Court”. This institution will be placed under the authority of the US Department of Justice. european citizens who believe they have been harmed can bring a case to the court. The procedure is divided into two phases:
- The first one is delegated to an agent depending on the director of national intelligence;
- The second is entrusted to the court itself.
Now, it remains to be seen if the contestation of the agreement will dissipate. Some, such as the chairman of the board of directors of OVHCloud, suspect that there is a hidden agenda in its development. Many suspect that Ursula von der Leyen, the president of the Brussels executive, has exchanged european data for American gas .