Safe Habor s collapse: Is the future data globalisation or data localization?

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1 Safe Habor s collapse: Is the future data globalisation or data localization? Phil Lee, Head of US OfAice, FieldAisher November 5 th, 2015 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com

2 afe Harbor Why it happened? Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com 2

3 afe Harbor Why never to underestimate a student Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / AieldAisher.com #

4 afe Harbor How it happened? June 2010: Düsseldorfer Kreis resolubon for German companies relying on Safe Harbor. June 2013: Snowden revelabons about NSA mass surveillance. November 2013: EU Commission makes 13 Safe Harbor recommendabons (deadline summer 2014). March 2014: EU Parliament votes to suspend Safe Harbor. June 2014: Schrems v Irish DPC before Irish courts. February 2015: Two German authoribes take acbon against two US Safe Harbor companies. March 2015: Schrems v Irish DPC goes to the ECJ. Safe Harbor put in the dock. October 2015: SAFE HARBOR DECLARED INVALID Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com 4

5 afe Harbor What actually happened? Safe Harbor is not in fact for the data of EU citizens, but is at best a safe harbor for data pirates Gerhard Kunnert, lawyer representing the Austrian government. Mass surveillance is manifestly incompatible with the fundamental right to privacy and data protection Noel Travers, lawyer for Max Schrems Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / AieldAisher.com #

6 afe Harbor What s your risk? TOTAL RISK COMMERCIAL RISK REGULATORY RISK Tidal wave of customer quesbons Deal fricbon / revenue delay Subcontractor flow down challenges UnrealisBc audit expectabons Middleman carrying risk? Safe Harbor ( ) InvesBgaBon, audits and fines? Stop now orders? Grace period to January 2016 (Unless Germany, Facebook and Google.) Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com 6

7 afe Harbor What are your options? Do nothing? (False) hope for Safe Harbor 2.0? Doesn t solve commercial risk Sign model clauses? Fine for intragroup transfers of your own data UnrealisBc if you are a supply- side business Do Binding Corporate Rules? A great solubon for exporbng data but minimum month implementabon period Sign interpreted model clauses? Can t amend model clauses (so they say) But is becoming an industry standard AWS, MS, Salesforce, Rackspace, Soglayer etc. Beher to sign something you can comply with, than something you can t? Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com 7

8 afe Harbor Why not just use consent? he Ar1cle 29 Working Party recommends that the deroga*ons in Ar*cle 26(1) [e.g. consent] o he Direc*ve should be interpreted restric*vely and preferably be applied to cases in which ould be genuinely inappropriate, or even impossible, for the transfer to take place on the basi f Ar*cle 26(2), i.e., providing adequate safeguards through, for example, (the standard ontractual clauses or binding corporate rules. Only if this is truly not prac1cal and/or feasibl hould the data controller consider using the deroga1ons in Ar1cle 26(1). his is the case in par1cular for transfers of personal data that might be described as repeated ass or structural. These transfers should, where possible, and precisely because of the mportance, be carried out within a specific legal framework (Ar1cle 25 or 26(2)). Only fo nstance when recourse to such a legal framework is impossible in prac1ce can these mass o epeated transfers be legi1mately carried out on the basis of Ar1cle 26(1). European Commission FAQs relabng to transfers of personal data from the EU/EEA to third countrie hhp://ec.europa.eu/jusbce/data- protecbon/internabonal- transfers/files/internabonal_transfers_faq.pd Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Paris / Shanghai / Silicon Valley / fieldfisher.com 8

9 QuesBons? Phil Lee Partner and Head of US Office Fieldfisher Tel: LinkedIn: uk.linkedin.com/in/phillee77 Brussels / Düsseldorf / Hamburg / London / Manchester / Munich / Palo Alto / Paris / Shanghai / AieldAisher.com #

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