Is Safe Harbor 2.0 Imminent? Don’t Hold Your Breath

EU Commissioner Vera Jourova is adept at finding silver linings in clouds, but she may, in fact, have a good sense of political reality when it comes to the now-invalidated Safe Harbor Program (our recent blog post on the Schrems decision here).

In her address to the EU Parliament’s LIBE Committee (Civil Liberties, Justice and Home Affairs) on October 26, 2015, Commissioner Jourova raised hopes by stating that an agreement “in principle” was in place between the European Commission and the U.S. Department of Commerce on a Safe Harbor 2.0. Then, she proceeded to dash these hopes by setting forth barriers to an agreement that make the Empire State Building look like a kiosk.

First, she noted, the U.S. must offer EU citizens safeguards for their information that are “globally equivalent” to those within the European Union. The likelihood of that, given the continuing activities of the National Security Agency and other law enforcement bodies is not very great. The picture got darker still when she said that the “greatest challenge” was U.S. “judicial control” over such activities. Such control, when it comes to national security concerns, is not very robust.

Enforcement, as a theme for the continuing stumbling blocks, emerged in Commissioner Jourova’s remarks when she said that there must be effective enforcement and oversight of the self-verification regime of companies registered with Safe Harbor. Anyone who pays attention to the media in 2015 is aware that, while the Federal Trade Commission (F.T.C.) has, in fact, proceeded against Safe Harbor registrants who acted in contradiction to their agreement to follow the EU-based Safe Harbor protection principles, the U.S. Congress appears to have little appetite for strengthening the hand of the F.T.C. or any government agency, for that matter.

Multinational organizations, then, would not be well advised to believe that a new Safe Harbor regime will be in place within a few months and, instead, should expedite efforts to find alternatives. Germany has already suspended Safe Harbor transfers, and so has Israel. Other countries may follow shortly.

For further information on alternative means of data transfers from Europe or Israel to the U.S., please contact Kenneth N. Rashbaum.