Safe Harbor to Privacy Shield: A view from the USA – Part 1

Abstract

This paper looks at the court decision and events which brought about the abrupt fall of the 15-year old Safe Harbor, a regulatory framework which was negotiated between trade partners and the central legal basis for many of the data practices of approximately 4,500 US-based enterprises. This paper then reviews the subsequent series of steps taken to install a new international data transfer program, now known as the Privacy Shield. This paper also considers the process and impact from a US practitioner’s perspective and examines the roles of and demands from the various actors in the legislative journey to fill the regulatory void. This paper details many of the steps and concerns raised during this process and how such issues were resolved or highlighted for future action. The paper finds that although the immediately-effective nullification of a long-standing trade pact was disruptive to commerce and innovation at the time, the important goals of clarity of legal protocols and the long-term protections of European fundamental rights ultimately were achieved in large measure.