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What Privacy Commitments Will Underlie Cross-Border Data Flows Between the EU and US?

The refreshed Data Privacy Framework comes after two years of negotiations on EU-US data flows.

A new Executive Order (EO) signed by the White House hopes to "restore an important legal basis for transatlantic data flows" between the EU and the US. Signed by President Joe Biden on October 7th, it outlines the steps the United States will take to implement its commitments under the European Union-U.S. Data Privacy Framework announced in March 2022. Why is data framework required for EU-US data flows?: Article 45 of the European Union's GDPR states that personal data may only be transferred from Europe to countries that have an "adequate level of protection" for personal data in place. ‘Adequacy’ is determined by the European Commission. "The United States has attempted to meet Article 45’s standard by developing data protection frameworks in coordination with the EU. Privacy Shield provided a mechanism for EU-U.S. data transfers from 2016," states a Congressional report. Companies voluntarily signed up for Privacy Shield, committing to uphold specified personal data protection standards. Individuals could also submit complaints if they believed their data was inadequately protected. However, in 2020, the Court of Justice of the European Union (CJEU) declared Privacy Shield invalid. In the landmark Schrems II judgment, the CJEU critiqued America's surveillance of people outside the United States under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The surveillance was not "strictly necessary" and lacked precise rules that imposed "minimum safeguards" to protect personal data, falling afoul of the GDPR's data protections. "EU individuals whose data is collected by U.S. surveillance do not have an adequate administrative or judicial…

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