Part 1: Countering the U.S. Arguments As the United States (US) and the European Union (EU) “intensify” negotiations to reach a new adequacy decision following the invalidation of Privacy Shield by the Court of Justice of the European Union (CJEU) in its July 16, 2020 Schrems II judgment (discussed here, here and here), one pressing question is what should be included and what should be excluded from the scope of the negotiations. It went unnoticed, but the US submissions to two recent European public consultations (one by the European Commission and another one by the European Data Protection Board (EDPB)) on post-Schrems II developments provide a glimpse of what could become a thorny issue during the ongoing EU-US negotiations for a successor to Privacy Shield.

The Cross-Border Data Forum is pleased to announce the appointment of Kenneth Propp as a Senior Fellow. Kenneth Propp teaches European Union Law at Georgetown University Law Center.  He also serves as a Senior Fellow with the Europe Center at the Atlantic Council in Washington, D.C., specializing in transatlantic digital policy issues.   From 2016-2018, Mr. Propp was director of trade policy for BSA | The Software Alliance, an association of major software companies.  From 2011-2015, he served as Legal Counselor at the U.S. Mission to the European Union in Brussels, Belgium, where he led local engagement with the EU on digital and privacy matters, including the General Data Protection Regulation and the U.S-EU Privacy Shield negotiations.  Prior to that, he served as a senior lawyer in the Office of the Legal Adviser, U.S. Department of State, where he negotiated a series of U.S.-EU data transfer agreements ranging from mutual legal assistance to passenger name records to financial transaction data.

‘EU–US negotiations on law enforcement access to data: divergences, challenges and EU law procedures and options’, by Theodore Christakis and Fabien Terpan, is the first article to present the context and the numerous challenges surrounding the EU and the US’ negotiations aimed at concluding an agreement on cross-border access to electronic evidence (e-evidence) for judicial cooperation in criminal matters.

In this article ‘How Europe’s Intelligence Services Aim to Avoid the EU’s Highest Court—and What It Means for the United States’, Theodore Christakis and Kenneth Propp explore the ongoing struggle within the European Union to delimit the national security exception in its data protection law for the activities of EU Member State intelligence services, and the corresponding impact this Brussels debate could have on the ongoing transatlantic negotiations to restore a secure basis for commercial data transfers from the European Union to the United States.

As part of the ongoing CBDF research project on data localization, this post examines a report issued in December, 2020 by the International Regulatory Strategy Group (IRSG) entitled, “How the Trend Towards Data Localization is Impacting the Financial Services Sector.” This report provides the most comprehensive analysis we have seen about the nature of data flows in the financial services sector. After reviewing global laws and regulations which limit or prevent cross-border data flows impacting the financial services sector, the IRSG report concludes that data localization poses an ineffective tool to support legitimate goals of data security, data privacy, regulatory oversight, support for local markets, and choice for customers.

Introduction Over the past year, the European Commission has generated an ever-expanding number of legislative proposals designed to make Europe “fit for the digital age”, in the words of Commission President Ursula von der Leyen.  International attention has focused most on two that would affect how large digital platform companies offer their services within the EU – the Digital Services Act and the Digital Markets Act– and on a third (the Data Governance Act[i]) that would establish a complex regulatory regime for the transfer of government-held non-personal data to third countries.