On Thursday 18 October, the American and European authorities launched the second evaluation of the transatlantic data protection system, the highly criticised ‘Privacy Shield’. During two days of meetings in Brussels, the European Commission intends to ensure that the promises of the US authorities have been kept.
Nearly 100 people gathered with, on the American side, people responsible for the operation of the system, but also for its supervision and, on the European side, representatives of the European data protection authorities. A few representatives of American companies were also invited.
On Thursday, the European Commissioner for Justice, Věra Jourová, also met with US Secretary of Commerce Wilbur Ross and the President of the Federal Trade Commission, Joseph Simons.
Under no circumstances should the conclusions of the first evaluation (see EUROPE 11886) be repeated, and the Commission has made this clear to the Americans, said a European official, who sees this second exercise more as a ‘stress test’.
"Without prejudging the outcome of the final evaluation, there are good signs", he assured. On the Commission side, there seems to be satisfaction with the ‘high level’ of the people sent to the meeting, which is a testimony to the importance given to this mechanism.
But also because concrete progress has been made on the American side in recent weeks. On Friday, October 12, the US Senate confirmed the three missing members of the US Privacy and Civil Liberties Oversight Board (PCLOB), Edward Felten and Jane Nitze and Adam Klein as Chair.
Another step forward was achieved on Tuesday 16 October with the publication of a declassified version of a PCLOB report on the implementation of Presidential Directive 28, which shows the US authorities' limits on access to European personal data.
On the reauthorisation of section 702 of the US Foreign Intelligence Surveillance Act (FISA) in January 2018, all the elements on which the European Commission based its decision for ‘Privacy Shield’ were maintained, Wilbur Ross said in an ‘op-ed’ published Thursday in the Financial Times.
Of course, there remains the thorny issue of the appointment of a permanent (‘Ombudsperson’) to handle complaints from Europeans whose data are processed by American companies. Several people have already held the position on an interim basis and on September 28, the State Department appointed Manisha Singh. The European Commission is expected to meet with her on Friday.
Although not always a permanent mediator, Ms. Singh was confirmed by the Senate, unlike her predecessors. Another person will be identified to occupy the position on a permanent basis, but it is now necessary to give the American authorities time to initiate the necessary procedures.
Earlier this month (see EUROPE 12109), the US Ambassador to the EU, Gordon Sondland, said that his country was in full compliance with the scheme, in an interview with EUROPE, Euractiv and EUobserver. He also considered that there was no real need for an Ombudsperson since no complaints had been received to date.
"All this pressure we have created seems to be working”, commended the European official. The Commission, which has said on several occasions that it would not hesitate to suspend the scheme if insufficient progress was made, had raised its voice this summer and left it until October for the US authorities to comply (see EUROPE 12074).
At the beginning of July, the European Parliament also got involved by adopting a resolution calling for the suspension of the system, if the Trump administration had not acted by 1 September (see EUROPE 12056).
From the same official, the Americans are well aware of the threat of suspension and especially the value of ‘Privacy Shield’ for their companies.
Nothing is to be expected on Friday at the end of the discussions, as the Commission must now check that all the commitments demonstrated have actually been implemented. It will present its findings in a report expected to be published at the end of November. (Original version in French by Marion Fontana)