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Safe Harbor and the Privacy Shield

Aaron P Simpson

Hunton & Williams

Wednesday 06 September 2017


Twenty-first century commerce depends on the unencumbered flow of data around the globe. At the same time, however, individuals everywhere are clamouring for governments to do more to safeguard their personal data, especially in the wake of Edward Snowden’s explosive revelations in 2013 regarding government snooping. A prominent outgrowth of this global cacophony has been reinvigorated regulatory focus on cross-border data transfers. Russia made headlines because it enacted a law in September 2015 that requires companies to store the personal data of Russians on servers in Russia. While this is an extreme example of ‘data localisation’, the Russian law is not alone in its effort to create impediments to the free flow of data across borders. The Safe Harbor framework, which was a popular tool used to facilitate data flows from the EU to the US for nearly 15 years, was invalidated by the Court of Justice of the European Union (CJEU) in October 2015, in part as a result of the PRISM scandal. The invalidation of Safe Harbor has raised challenging questions regarding the future of transatlantic data flows. A successor framework, the EU–US Privacy Shield, was unveiled by the European Commission in February 2016 and as of July 2016 has been formally approved in Europe.

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