FTC, ITA Officials Hopeful on US Privacy Shield Commitment Ahead of Trump Administration
Intergovernmental communication provisions embedded in the EU-U.S. Privacy Shield will ensure a “smooth continuation” of the agreement’s implementation after President-elect Donald Trump’s administration takes office in January, said International Trade Administration Data Flows and Privacy team lead Shannon Coe during a FCBA event Monday. Experts have been left guessing about how Trump will handle privacy issues, though FTC Chairwoman Edith Ramirez said she doesn’t believe the change in administration will affect Privacy Shield implementation (see 1611090016). Some believe the shield will need Trump administration backing to remain effective (see 1611100039).
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The pact includes firmer commitments to “enhanced cooperation” between EU and U.S. officials than under the previous safe harbor agreement that the European Court of Justice invalidated in 2015, Coe said. Under the safe harbor agreement, officials “didn’t have as much interaction” in relating concerns about the agreement’s efficacy, which some have posited may have contributed to EU discontent with the agreement, she said. Officials at the Department of Commerce and FTC have “enhanced relationships” with EU officials to “ensure open-minded communication” about the Privacy Shield’s implementation, Coe said. Improved communication “minimizes the possibility” that the EU will continue to misperceive the U.S. as being hostile on privacy protections, she said.
The EU and U.S. did ensure the accord would be as durable as the old safe harbor agreement was in withstanding changes in administration, Coe said. She said the safe harbor agreement was negotiated in the final full year of President Bill Clinton’s administration “and then endured” through two presidential administrations of opposing ideological bent. ITA and other federal agencies are committed to continuing to engage their European partners on the Privacy Shield and are currently consulting with Switzerland to develop a Swiss privacy shield to mirror the EU-U.S. agreement, Coe said. That agreement would replace the existing Switzerland-U.S. safe harbor deal, which itself was mirrored on the old EU-U.S. safe harbor, Coe said.
It’s “anyone’s guess” how the Trump administration will respond to privacy issues, said Womble Carlyle lawyer Douglas Bonner. Stakeholders should “ignore the Brexit effect” because U.K. withdrawal from EU protocols is still years away from completion, he said. The model contracts clauses in the Privacy Shield will likely be “of keener interest” to companies doing business in the U.K. post-Brexit, but it’s likely that country will adopt an agreement substantially similar to the Privacy Shield, Bonner said.
Meanwhile, AT&T v. FTC at the 9th U.S. Circuit Court of Appeals “upended” the privacy regulatory framework for the federal government, Bonner said. The 9th Circuit ruled in August against the FTC’s lawsuit against AT&T Mobility, saying the agency had no jurisdiction over the telco in a data throttling case. The ruling said FTC Act Section 5 doesn't let the agency take enforcement actions against common carriers (see 1608290032). The 9th Circuit is considering an FTC petition for an en banc review of the earlier three-judge panel’s ruling (see 1611020031). Absent an en banc reversal of the earlier 9th Circuit ruling, “we have a hot mess here” on responding to consumers’ complaints about non-common carrier services, Bonner said.
The FTC remains committed to enforcing against violations of the Privacy Shield as articulated in Ramirez’s February letter to EU Justice Commissioner Vera Jourová on what actions the agency would take with the agreement (see 1602290003), said International Consumer Protection Counsel Guilherme Roschke. The FTC agreed to investigate Privacy Shield violations and to act against false claims of participation in the agreement program, Roschke said. The agency also agreed to use its authority to aid European data protection authorities where appropriate, he said. Roschke noted users have several levels of recourse before seeking a final step of binding arbitration on Privacy Shield issues, including contacting an individual company or data protection authority to resolve a problem.