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Hello all, and happy Thursday! 

Hello all, and happy Thursday! 

For those of you who have been in the privacy game for the past few years, you may recall how difficult it’s been to keep EU-U.S. data transfers compliant with the GDPR. First, there were the Safe Harbor Principles (ruled invalid by the European Court of Justice), then the Privacy Shield (also ruled invalid), and now there’s the Data Privacy Framework (still valid... for now). 

It’s tempting to say that the reason for all of this back and forth is Max Schrems and his data privacy non-profit noyb (or “none of your business”). It’s true that Schrems is responsible for bringing forward the complaints that led to the downfall of the Safe Harbor Principles and Privacy Shield, and he’s established that he intends to challenge the Data Privacy Framework too. 

But the real reason why these mechanisms have failed relates to one of our stories this week: the recent renewal of section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 serves as the basis for all sorts of surveillance programs. This includes PRISM, which lay at the center of Edward Snowden’s revelations.  

Section 702 gives the U.S. intelligence community the power to demand that U.S. tech companies hand over non-U.S. citizens’ data upon request, sidestepping any kind of judicial review. Fundamentally, this clashes with the GDPR—EU citizens’ data is supposed to be protected from these kinds of secret transfers, even if (or especially if) the recipient is a government agency.  

So, Max Schrems may have been the instigator, but he’s not the ultimate reason why these data transfer mechanisms failed. The current Data Privacy Framework at least provides some means of redressing EU citizens’ complaints when their data is accessed by U.S. intelligence agencies, but it hardly addresses this fundamental clash between privacy and surveillance.  

In a time when everyone’s attention is monopolized by AI, state data privacy laws, and even a potential U.S. federal data privacy law, it’s worthwhile to recall just how uncertain the future of EU-U.S. data transfers may be. 



P.S. Speaking of AI, (you didn’t think I wasn’t going to mention AI, did you?) episode 2 of the Privacy Insider podcast is out! You can listen here, or scroll down to the bottom of this newsletter. 

Privacy Insider Podcast - Resource Hero

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