If you can remember as far back as December 2021, we published a blog post announcing that the European Data Protection Board (EDPB) published draft guidelines on the interplay between the territorial scope of the GDPR and the international transfer requirements. Following what must have been an extensive consultation, we are pleased to report that those guidelines were finally finalised on 14 February 2023 (here) and, are even more pleased to report that they contain some very useful illustrations to help you make sense of the concept of international data transfers.
A sigh of relief? EU-US data transfers
At the end of 2022, the European Commission published its draft adequacy decision on the EU-US transfers of personal data. The draft contains an assessment of the US legal framework around state surveillance. Once in place, EU data transfers to the US under the new Data Privacy Framework (“EU-US DPF”) will be free. However, there are still some steps to take.
ICO provides an alternative to the EDPB transfer impact assessment
On 17 November 2022, the UK Information Commissioner’s Office issued updated guidance on international personal data transfers. The guidance is to be used for transfers of personal data from the UK to third countries. The ICO added a template transfer risk assessment (TRA) to the guidance, which is required when organisations rely on a transfer tool under Article 46 of the UK GDPR, e.g. the ICO’s International Data Transfer Agreement (the UK version of the EU SCCs); the Addendum to the EU SCCs, or the Binding Corporate Rules. The requirement to carry out transfer impact assessments stems from Article 46(1) of the UK GDPR, which states that the transfer mechanisms can be used “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” confirmed by the CJEU’s Schrems II judgement.
The ICO’s TRA offers an alternative approach to the EDPB’s transfer impact assessments (TIA), to assist data exporters with carrying out their analysis to check that that protections under the transfer tool are not undermined by the laws and practices of the recipient third country.
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Transatlantic Data Flows – Chapter 3: The EU-U.S. Data Protection Framework: A Summary of the U.S. Executive Order issued on Oct. 9 and its immediate and future effects
At a Glance:
On Oct. 7, 2022, U.S. President Joe Biden issued Executive Order on ‘Enhancing Safeguards for United States Signals Intelligence Activities’ (“Executive Order” or “EO”). It is described by the U.S. as “a durable and reliable legal foundation” and “that the new ’robust’ commitments contained in the executive order ’fully addresses’ the issues raised in the [EU] Court of Justice’s decision on Privacy Shield” (the “Schrems II ruling”). This Executive Order will form the basis for a new EU-U.S. Data Privacy Framework, aka Safe Harbor Framework v3 or Privacy Shield 2.0.
The issuance of the EO was a central part of the agreement in principle reached between the EU and the U.S. to address the issues raised in the Schrems II ruling. While most of the world waited for this Executive Order, we now all wait for the EU’s response as to whether or not this EO, once its requirements are implemented, suffices to lift the U.S. to an adequate level of data protection within the meaning of Art. 45 GDPR. Even before full implementation of the procedural aspects of the EO, the Executive Order will have a positive impact on data transfers given that the surveillance must be conducted in a proportionate manner that takes into account the impact to privacy and civil liberties of all persons, assuming the EU will be designated as a “qualifying state” by the U.S. Attorney General under the EO.
A conversation with New York Attorney General, Letitia James
In the October edition of IAPP’s Privacy Advisor, Divonne Smoyer, Hubert Zanczak, and Stuart Cobb speak to New York State Attorney General, Letitia James, about her view of consumer privacy, her work to date in enforcing existing laws and her thoughts about the future of privacy in New York and the country.
M365 Accessibility: Considerations and Risks Associated with Vision Related Tools
Almost 20 million Americans — 8 percent of the U.S. population — are blind or have visual impairments. Accordingly, organizations and businesses in nearly every industry stand to benefit from the use of vision related accessibility tools, which can increase employee productivity and provide a more inclusive user experience. To address this need, M365 incorporates a slew of tools and features – such as screen readers, text-to-speech, and color filters – that make it easier for end users with visual impairments to access, use, and benefit from M365 products. However, because these tools may collect and store user data in ways that may not be immediately apparent, businesses employing them must remain cognizant of the potential downstream risks associated with their use. Listen to our latest Tech Law Talks podcast episode, M365 accessibility: Vision-specific tools, as we discuss.
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Irish DPC fines Instagram a record €405 million
Meta-owned Instagram has been fined €405 million by the Irish Data Protection Commission (DPC) for violations of the EU General Data Protection Regulation (GDPR), following a two year investigation into how the social media platform handles children’s data. This is the largest fine imposed by the DPC to date. Below, we highlight some of the key issues arising in the case.
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ICO enforcement actions in Q1 2022
In Q1 2022, the UK’s Information Commissioner’s Office (ICO) issued 26 enforcement actions. There were 15 monetary penalties issued, ranging between £2k – £200k, and 11 enforcement notices. The majority of the fines and enforcement notices related to unsolicited marketing activities, two related to data subject rights infringements, and one related to a failure to ensure adequate security around personal data. The last related to a ransomware attack and despite the controller being subjected to a malicious cybercrime, it was penalised for a failure to address known vulnerabilities and to prevent the ransomware attack in time.
The fourth anniversary of the GDPR: How the GDPR has had a domino effect
Four years ago, the General Data Protection Regulation (“GDPR”) came into force in the EU. Since then, the GDPR has had a domino effect, as many countries in the world have used it as a model to shape their own rules on the handling of personal data. Given the rapid changes in data protection legislation around the world, legal and compliance teams of multinational organisations are under pressure to keep up with such developments as they continuously adapt their compliance programs in response.
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Department for Digital, Culture, Media and Sport launches consultation on app security
On 4 May 2022, the Department for Digital, Culture, Media and Sport (DCMS) launched a consultation (available here) to request views from the tech industry on potential interventions to enhance security and privacy requirements for firms running app stores and developers making apps.