• by Ray Schultz , Columnist, April 13, 2017

European officials are nervous about the privacy machinations going on in the U.S.

Last week, the European Parliament passed a resolution questioning the American commitment to the EU-U.S. Privacy Shield. “In a nutshell, the EP is worried that the U.S. government doesn’t take privacy protection seriously,” Public Knowledge reported.

In addition to its broad concerns about the Privacy Shield, Parliament expressed its angst about these two issues:

1. The recent rollback of broadband privacy rules devised during the Obama administration. Parliament specifically referred to “the Trump administration’s undoing of the FCC’s broadband privacy rules.”
2. The extent to which “the (U.S.) government orders online communications companies to cooperate in surveillance,” according to Bloomberg. Last October, Parliament questioned “the alleged scanning of Yahoo! Inc. customers’ incoming emails at the request of U.S. intelligence agencies,” Bloomberg continued.

These alarms come at a critical time—the Privacy Shield is set for its first annual review in September.

The Privacy Shield is the legal framework that allows data flows between Europe and the U.S. It is “an accommodation mechanism between two very different privacy approaches,” Public Knowledge reported.  “The U.S. government promises to protect Europeans’ personal data by making some tweaks to its privacy framework, and the EU allows transatlantic data flows.”

Why did the two such differing sides agree to this compromise? Because “blocking data transfers between the EU and the U.S. would be highly disruptive for social and economic reasons,” Public Knowledge continues.

It still would be disruptive. And the real issue here is not about the broadbands, it’s whether “the accountability mechanism in the Privacy Shield is effective,” said Martin Abrams, executive director of the Information Accountability Foundation, in an interview. “The FCC-broadband rollback is a wholly different question. The Privacy Shield is not based on the fact that U.S. privacy protections are equivalent.

"It’s based on organizations agreeing to live up to a standard. Privacy Shield is an accountability program, a mechanism for adequacy. It’s not a determination by the European Commission that our privacy laws are equivalent.”

Abrams noted that surveillance in the U.S. is much more transparent than it is in Europe. That aside, he added, “I believe that the real relevant questions are related to whether organizations are honestly signing up for Private Shield, fulfilling their commitments and making sure individuals can forward complaints to state department’s The EC is coming over to answer those questions.” 

So it will fall on private companies to set high standards for consumer protection (as many already have), and to honor their commitments to the Privacy Shield. Everything else is smoke. 

Does President Trump support the Privacy Shield? One observer thinks so.  

“It is understandable the Europeans are carefully monitoring the actions of the new Administration on Privacy Shield and privacy concerns,“ said Brian Hengesbaugh, data protection partner at Baker McKenzie, in an email. “To date, the new Administration has consistently expressed its commitment to upholding Privacy Shield, including in the most recent meeting between EC Commissioner Jourova and US Commerce Secretary Ross specifically on the issue.” 

Hengesbaugh added that “Internal US privacy developments, such as the Congressional revisions to the FCC privacy rules, do not affect the Privacy Shield program in any way. Privacy Shield is a standalone program that incorporates substantive European privacy standards and is enforced by the Federal Trade Commission and other mechanisms.

"My expectation is that the new Administration will continue to uphold and support the Privacy Shield, because it understands that certainty about data flows and strong commercial relations with Europe are critical for US jobs and prosperity.”