The International Technology Law Association Responds to Recent European Court of Justice Safe Harbour Decision

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Privacy Professionals Discuss Solutions to Decision at European Conference

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At the recent 2015 ITechLaw European Conference in London, over 400 specialist technology lawyers gathered to discuss topical issues; chief amongst these was the recent decision of the European Court of Justice which has declared invalid the EU Commission’s Safe Harbour decision. Discussion focused on how data protection counsels from different jurisdictions are facing the challenges triggered by the Safe Harbour decision, and whether local Data Protection Authorities are taking any official position on the consequences of decision.

The European Conference discussion participants highlighted the urgency for data protection counsels and businesses to find a solution and have some practical guidance on how to face transatlantic data flows. In particular, the Article 29 Working Party (the EU body composed by local EU Data Protection Authorities) has clarified recently that local Data Protection Authorities will not start enforcement actions until January 31, 2016, which becomes therefore the time limit within which EU and U.S. institutions have to find a solution – although anyone agreed it is a very short timeframe to work on a Safe Harbour 2.0.

The discussion also pointed out that, on one side, the alternatives to Safe Harbour currently available do not ensure any protection against massive surveillance from U.S. authorities and, on the other side, the same massive and indiscriminate surveillance is likely carried out within EU countries or other foreign countries without being subject to great concerns either at EU or local level. In view of this, any resolution needs to fairly reflect the ability of providers to export services whether in the U.S. or EU, and ensure at the same time a high level of protection of personal data and its circulation worldwide.

Although alternatives to the Safe Harbour do exist and many are taking these measures to face the emergency, the current situation brings uncertainty – not only on how companies should act but also on possible sanctions, which might have negative effects on transactions and businesses based on the sharing of personal data with the U.S. The need for clarity and guidance is all the more pressing in a world were almost every industry is moving to the digital environment and personal data is becoming more and more valuable and protected. In this regard, the European Commission is working on reaching a new agreement with U.S. authorities, while the U.S. Congress is working on the approval of a Judicial Redress Act which would extend to foreigners the same rights as U.S. citizens in case of violation of their privacy by U.S. authorities.

About the International Technology Law Association
Founded in 1971, ITechLaw is the world's premier organization representing lawyers in the technology sector. The organization's global membership spans six continents, and embodies a broad spectrum of expertise. In addition to serving as a forum for members to discuss a wide range of legal issues, the association regularly organizes conferences that explore cutting-edge issues and trends in both information technology and intellectual property law. Global Sponsors help support ITechLaw's mission and programs. For more information, visit http://www.ITechLaw.org.

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Elizabeth Johnson
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