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Kirk Nahra Comments on Details of EU-U.S. Privacy Shield Agreement

IAPP’s The Privacy Advisor
March 3, 2016

Kirk J. Nahra, chair of Wiley Rein’s Privacy Practice, was quoted yesterday in The Privacy Advisor about the U.S. Department of Commerce’s release this week of the full text of the EU-U.S. Privacy Shield agreement.

“I think there’s still a real question as to whether it’s really going to get approved on the EU side,” Mr. Nahra said of the agreement, which was negotiated by Commerce and the European Commission. But he said there’s probably a likelihood that the deal will ultimately gain approval, because a data transfer mechanism is needed for commercial transactions—on both sides of the Atlantic—to continue.

“Do the EU politicians think at this point they can get a better deal out of the U.S. government?” Mr. Nahra asked. “That’s a game of playing chicken. Their choice is either agree or not, and then you’ve got all those commercial problems, which I don’t think is in their interest either.”

The article notes that U.S. authorities made accommodations based on EU concerns, but there has been some early criticism of the agreement from European officials. “It’s now a question of how much more the extreme voices get to control things,” Mr. Nahra said.

He also pointed out the new agreement misses the mark in some ways. The Schrems case—which led the EU’s highest court to invalidate the old Safe Harbor framework last year—focused on U.S. law enforcement’s access to EU citizens’ data. However, that potential situation didn’t apply to most of the companies certified under Safe Harbor. “The problem that came out of the Schrems decision is not that the companies were doing anything wrong,” Mr. Nahra said, adding that the focus should be on whether it’s now harder for the U.S. government to access the data. 

To read the complete article, please click here.