President Biden Signs Executive Order to Implement EU-U.S. Data Privacy Framework

By‎ Adv. Dotan Hammer

Partner at the Cyber, Privacy & Copyright Group, Pearl Cohen Zedek Latzer Baratz

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The President of the United States signed a new executive order designed to promote the re-establishment of a new EU-U.S. Data Privacy Framework for transferring personal data from the European Union for processing in the United States. The White House statement indicated that the EU-U.S. Data Privacy Framework is essential to the transatlantic economy, valued at more than 7 trillion dollars a year. The executive order comes about six months a year after the U.S. president and the president of the European Commission announced that they had reached an “agreement in principle” on a new EU-U.S. Data Privacy Framework. The new arrangement is designed to replace the previous Privacy Shield arrangement that was invalidated by the Court of Justice of the European Union in July 2020.

The new executive order was tailored to address the concerns expressed by the July 2020 decision of the Court of Justice of the European Union. The order establishes several protection and control measures:

  • Limiting the use of signals intelligence by the American intelligence community only to promote national security objectives proportionately, while taking into account privacy considerations, regardless of the citizenship or place of residence of the targets.
  • Expanding the activity of control, legal and compliance stakeholders to ensure appropriate measures are taken in cases rules are violated.
  • Establishing a multi-tiered mechanism for reliefs and remedies for data subjects asserting complaints of privacy violations due to the data collection methods of the American intelligence community. The first layer is based on an independent and mandatory inspection by the Civil Liberties Protection Officer at the Office of the Director of National Intelligence. The second layer will be a dedicated Data Protection Review Court. The new court will be established in the Department of Justice and will be entrusted with independent judicial review of the decisions of the Civil Liberties Protection Officer. The decisions of the dedicated court will be binding. The judges of the court will be appointed from among candidates outside of the government while ensuring their independence. A special advocate will assist the court in its consideration of the matter, including by advocating regarding the complainant’s interest in the matter.

Immediately after the issuance of the executive order, the European Commission announced that it would now work to promote the establishment of the new EU-U.S. Data Privacy Framework. As part of the process, the Commission will seek the opinion of the European Data Protection Board (EDPB). The entire process is expected to take about six months.

Click here to read the full executive order.

Click here to read the White House statement.

Click here to read the Press Release of the European Commission on the new EU-U.S. Data Privacy Framework.