Brussels is nearing an agreement on US data transfers

The European Union took a step closer to finalizing a data-transfer pact with the United States when it issued a draft decision on Tuesday saying US safeguards against American intelligence activities are strong enough to assuage EU concerns.

The two sides finalized a tentative agreement in March, cheering thousands of companies finding themselves in a legal morass after Europe’s top court in 2020 struck down an earlier data transfer deal over concerns about US intelligence agencies’ access to Europeans’ data . It was the second such court veto.

US President Joe Biden followed in October with an executive order establishing new safeguards for US intelligence procurement activities and a two-tier appeal system, first to an intelligence watchdog and then to a court of independent judges.

European Commission Justice Chief Didier Reynders said the draft adequacy decision shows US safeguards offer EU citizens the same level of data protection as European law.

“Our analysis has shown that strong safeguards are now in place in the United States to allow for the secure transfer of personal data between the two sides of the Atlantic,” Reynders said in a statement. “The future framework will help protect citizens’ privacy while providing legal certainty for businesses.”

Austrian privacy activist Max Schrems, whose campaign over the risk of US intelligence agencies accessing Europeans’ data in a long-running dispute with Meta led to a court veto, said US safeguards are not for people outside the United States appropriate.

“I can’t imagine how this would survive a challenge in court. It seems that the European Commission keeps making similar decisions – in flagrant violation of our fundamental rights,” he said in a statement.

Still, companies would be wise to have a fallback clause in the form of Standard Contractual Clauses in case the latest data transfer pact is challenged and rejected in court, said Patrick Van Eecke, head of law firm Cooley’s European cyber, data and privacy practice.

“Use it when it’s available, but make sure you have an alternate option,” he said.

​​​​​ Brussels is nearing an agreement on US data transfers

Fry Electronics Team

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