On September 9, 2015, the U.S. and EU concluded negotiations on the “umbrella agreement” to increase international law enforcement cooperation and effectiveness by providing a high level of protection for information transferred across the Atlantic for law enforcement purposes. According to Věra Jourová, EU Commissioner for Justice and Consumers, “Robust cooperation between the EU and the US to fight crime and terrorism is crucial to keep Europeans safe. But all exchanges of personal data, such as criminal records, names or addresses, need to be governed by strong data protection rules. This is what the Umbrella Agreement will ensure.”
However, the Umbrella Agreement will not enter into force until the U.S. provides EU citizens the right to challenge the availability, accuracy, and sharing of their personal information in the U.S. To meet this requirement, the Judicial Redress Act was introduced in the House and Senate. If passed, this law would provide redress rights to citizens of covered countries under the Privacy Act and increase the U.S. Federal Government’s accountability for its data privacy practices. The Judicial Redress Act has received support from the White House, the Department of Justice, and U.S. federal law enforcement agencies.
More recently, the Judicial Redress Act has been interpreted by the European Court of Justice (ECJ) and the European Commission as an important trust-building mechanism for transatlantic commercial data flows. On October 6, the ECJ invalidated the Safe Harbor Framework on grounds that the United States’ failure to provide citizens’ rights to access and correct personal data “does not respect the essence of the [EU] fundamental right to effective judicial protection.”
The Safe Harbor framework greatly contributed to the success of the digital advertising marketplace by providing more than 4,000 businesses, including many IAB member companies, a means to transfer data across the Atlantic in a streamlined and cost-effective manner that ensured consumer protection. The ECJ’s decision has created tremendous legal uncertainly for the digital advertising industry as companies have been forced to quickly reevaluate existing business practices and contractual relationships. In recent weeks the situation has become more precarious as EU member states question the legality of other transfer mechanisms, including model contracts.
It is critically important that the U.S. and EU establish new rules enabling the transfer of data across the Atlantic. Lawmakers in the European Union have identified passage of the Judicial Redress Act as a necessary step to achieve this shared goal.
The burden is now on the U.S. Congress to act swiftly to pass this legislation and demonstrate support for the business community. Failure to provide judicial redress in the coming weeks could leave thousands of businesses at risk as the EU’s Safe Harbor enforcement moratorium expires on January 31, 2016.
IAB thanks the members of the U.S. House of Representatives for passing this legislation in October. We encourage members of the Senate to support the quick passage of the Judicial Redress Act and ensure that U.S. companies of all sizes have efficient methods to comply with international data protection laws.
