Antitrust Law Daily Wrap Up, PRIVACY NEWS: Commissioner Brill addresses transatlantic relationship in meeting privacy challenges, (Dec 11, 2015)

By Michael Menzhuber, J.D., LL.M.

In a speech given at the Forum Europe 6th Annual Privacy and Data Protection Conference in Brussels, Belgium on December 10, FTC Commissioner Julie Brill discussed why an agreement needed to be reached on a replacement for Safe Harbor and how data protection authorities in the United States and in Europe can work together to address the urgent challenges presented by an increasingly complex digital ecosystem.

In her address titled “Back to the Future: Meeting Privacy Challenges Through a Strong Transatlantic Relationship,” Brill suggested that important consumer and company protections were lost as a result of the European Court of Justice’s (ECJ) decision in Schrems v. Data Protection Commissioner, which invalidated the European Commission’s decision in 2000 to approve an agreement known as Safe Harbor as a data transfer mechanism. She then discussed why, in the absence of Safe Harbor, there would be a loss of transparency and that the FTC’s enforcement of companies’ transatlantic privacy commitment would be much more difficult.

Under the ECJ’s holding in Schrems, for there to be a finding of “adequacy” of the laws of another country or data transfer mechanism, the EC must demonstrate that privacy laws and other protections are “essentially equivalent” to those found in the European legal order. In Brill’s view, this “essentially equivalent” standard requires a comparison between laws as they actually exist in the United States and at the European Union and Member States Level.

After noting that the framework for the protection of personal data in the United States is a combination of constitutional, statutory, and administrative protections; Brill discussed the many ways that the United States protects personal data. Citing actions taken by the FTC to ensure that companies lived up to Safe Harbor principles, she stated that the FTC was ready to use the same tools to enforce the enhanced protections that will be built into Safe Harbor’s replacement as it used to enforce Safe Harbor.

Before discussing what she sees as the challenges that lie beyond Safe Harbor, Brill urged everyone to consider implementation of a successor Safe Harbor as a beginning, not the end, of a renewed effort to work together on strengthening privacy protections.

In the U.S. there is an ongoing, robust debate over whether to enact legislation that requires companies to have a means to provide law enforcement with access to unencrypted versions of encrypted communications in response to a court order or warrant, according to the Commissioner. She suggested that Europeans should engage in this discussion as well and should examine their Member States’ own law enforcement with the same openness and recognition of the potential impact the practices may have on consumers’ and citizens’ privacy.

Brill also stated her belief that it is in the larger issues presented by newer data technologies and the highly connected world that they create, that the U.S. and Europe may be able to forge a constructive dialogue about common approaches that will, at the same time, address the challenges these technologies pose to fundamental aspects of consumer privacy, security, and fairness in our societies.

The U.S. needs to go further with its consumer privacy laws to ensure that consumers are adequately protected with respect to these new technologies, Brill suggested. However, additional consumer privacy legislation in the U.S. was not a prerequisite for a post-Schrems data transfer mechanism.

Brill concluded by stating that the Schrems decision did not take away the common ground shared by the U.S. and Europe and did not diminish the importance of: (1) working together to understand the privacy implications of new technologies; (2) cooperating on enforcement matters when possible; and (3) bringing actions when warranted. She then expressed her hope that the Schrems decision would motivate both European and American stakeholders to join in an honest discussion about the strengths and weaknesses of privacy protection on both sides of the Atlantic.

News: Privacy FederalTradeCommissionNews