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The EU - U.S. Safe Harbor and the Promise of Big Data and Technology

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By Paula J. Bruening, Senior Counsel for Global Privacy Policy at Intel 

The decision handed down last week by the Advocate General of the European Court of Justice in the Schrems case serves as an important reminder of the importance of protected, unimpeded data flows.  Over the last two years, David Hoffman and I have written often of the promise of technology and data to advance global commerce and economic growth, to connect individuals, and to address critical social, medical and scientific questions that have until now not responded to traditional solutions.  Our Rethink Privacy initiative reflects the belief in that to realize that vision, the movement and access to data must be unimpeded and protected.  Rethink Privacy proposes approaches to privacy that make innovation possible and promote the flows and uses of data that are streamlined, safe and responsible.

This week, the Advocate General (AG) of the European Court of Justice (ECJ) delivered his opinion in Maximillian Schrems v. Data Protection Commissioner, commonly referred to as the Schrems case.  The AG found that the EU-U.S. Safe Harbor regime is invalid.  Going forward, every national DPA would be positioned to decide to challenge data transfers implemented under the terms of the Safe Harbor on a case-by-case basis if it determines that such a transfer would undermine the protection of EU citizens. While the decision of the AG is not final, its rulings usually are influential as the EJC arrives at its final ruling.

Shortly after the Snowden revelations, the EU Commission initiated a review of the Safe Harbor agreement, and officials from the Commission and the U.S. Department of Commerce have worked to resolve issues the Commission identified related to its effectiveness. Intel supports the successful, constructive resolution of the Safe Harbor discussions.  The protected, robust flow of data across borders is critical to our ability to realize the benefits promised by evolving digital technologies, the Internet of Things and big data analytics.  Intel believes that the Safe Harbor agreement has been essential in supporting the trusted movement of data between the European Union and the United States.  The Safe Harbor, originally agreed upon in 2000, was due for review.  But the core of the Safe Harbor remains fundamental – a predictable, effective legal regime to govern data flows between the EU and the U.S.  It is important that we resolve outstanding questions in a constructive, forward-looking way, and avoid outcomes that jeopardize data flows between these two important markets, and the transformational benefits that both can enjoy.