FTC, EC Officials Encourage Privacy Shield Work Amid Legal Uncertainty
A potential legal challenge to the new trans-Atlantic “Privacy Shield” data protection framework creates legal uncertainty for stakeholders in both the U.S. and Europe, but that shouldn't prevent both the parties from moving forward on the framework, said FTC Chairwoman Edith Ramirez and European Commission Article 29 Data Protection Working Party Chairwoman Isabelle Falque-Pierrotin during an event Tuesday. The Article 29 Working Party is set to release its views on a draft version of the Privacy Shield during a plenary meeting next week, feedback that will influence the EC's decision on whether it supports the framework. Members of the European Parliament and privacy advocates have questioned whether Privacy Shield would hold up in European courts given the European Court of Justice's standards in striking down the old safe harbor framework (see 1603170028).
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The Article 29 Working Party's role in assessing Privacy Shield is to “increase legal certainty” by providing the EC with feedback on possible areas of concern ahead of EC action, Falque-Pierrotin said during an International Association of Privacy Professionals summit. All parties want to ensure Privacy Shield is “robust,” she said. Stakeholders will need “to wait and see how [assessment of the Privacy Shield] plays out” in governments and potentially the courts, Ramirez said. The U.S. “endeavored to create a framework that meets the tests” the ECJ set up in its October ruling striking down the old framework, she said. Despite the potential for a court challenge, there was “much greater uncertainty” on data flows before parties released the draft Privacy Shield, Ramirez said.
U.S. privacy stakeholders won't see the FTC's level of activity on privacy issues drop because of now-former Commissioner Julie Brill's departure (see 1604010015) from the commission, Ramirez said during an earlier IAPP panel Tuesday. The FTC “will continue to function” despite the commission's two current vacancies, she said. Ramirez expressed confidence that Commissioners Terrell McSweeny and Maureen Ohlhausen will aid the commission in continuing its recent series of “significant” enforcement actions on privacy issues.
The Senate Commerce Committee expects President Barack Obama will nominate candidates to replace Brill and former Commissioner Joshua Wright at the FTC, though Senate confirmation of those nominees “becomes a tricky proposition” given the Senate's tight legislative calendar ahead of the November election, said committee GOP Counsel Peter Feldman during an IAPP panel. FTC nominations have “traditionally been an opportunity” for Senate Commerce to explore privacy issues and other FTC-related topics as a part of confirmation hearings, Feldman said. Senate Commerce's exploration of privacy issues will be mostly confined to its behind-the-scenes FTC oversight work for the rest of the 114th Congress, particularly given that the committee doesn't expect to move on any privacy-related legislation before the end of the year, Feldman said.