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Are negotiations on the EU-US Privacy Shield in their final phase?

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Ever since the EU Court of Justice declared the Safe Harbour agreement invalid in October 2015, the EU and the US have been trying to conclude a new agreement – the so called EU-US Privacy Shield - in order to set up a framework for transatlantic data flows in respect of EU data protection laws. (see our previous blog posts: ‘EU-US Privacy Shield’ and ‘EU-US Privacy Shield: Trouble Ahead?’)

The first draft text of the EU-US Privacy Shield was published in February 2016. However in the last two months, the European Data Protection Supervisor, the Article 29 Working Party (WP29) and the EU Parliament all raised concerns about certain aspects of the deal and had urged the EU Commission to renegotiate with the US (see ‘European Parliament voices concerns on the EU-US Privacy Shield’). Following these concerns, further negotiations have been pushed. Reportedly last week an agreement was reached between the EU and US negotiators and a revised text was sent to EU Member States.

This revised text itself is not publicly available yet, but it is said to include concessions on issues relating to the position of the proposed Ombudsperson, judicial redress mechanisms and the question of collection of bulk data for national security purposes.

It is still to be seen if and how the amendments address the concerns and criticisms that have been raised: will the redress mechanism be less complex, and more user-friendly and effective? Will the appointed Ombudsperson be sufficiently independent and have adequate powers? Will the collection of bulk data for national security purposes by US authorities be limited? On the last topic, Commissioner Jourova had already stated that negotiators have "reached an accord on more precise listing of cases when bulk collection can occur and a better definition of how our American partners understand the difference between bulk collection which may be justified and mass surveillance without any purpose, which is not tolerable."

What’s next?

The revised text will first have to be formally approved by the Article 31 Group, which is a committee made up of national representatives. They have meetings scheduled today and on 4 July.

To be continued…