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Article 29 WP Says Safe Harbor Transfers Illegal; Model Clauses and BCRs Under Review

By Sheila Millar & Tracy Marshall on October 16, 2015
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The Article 29 Working Party (WP) issued a press release on October 16, 2015 announcing the outcome of the meeting to discuss coordinated action after the Court of Justice of the European Union (ECJ) decision in the matter of Schrems v. Data Protection Commissioner (C-362-14), which invalidated the U.S.-EU Safe Harbor Agreement. While calling for a coordinated position and urging Member States to urgently open negotiations with the U.S. to address “indiscriminate surveillance,” the WP stated: “transfers that are still taking place under the Safe Harbour decision after the [ECJ] judgment are unlawful” (boldface in original). The WP expressed the view that standard contractual clauses and binding corporate rules (BCRs) can still be used, but said that “this will not prevent data protection authorities to investigate particular cases, for instance on the basis of complaints, and to exercise their powers in order to protect individuals” (boldface in original).

The WP further expressed the position that if negotiations with the U.S. are not successful by the end of January 2016, or if the assessment of transfer tools does not yield results deemed to be privacy protective, then EU data protection authorities would be prepared to take actions up to and including coordinated enforcement. In this increasingly complex landscape, companies need to continue to quickly assess data transfer options.

Photo of Sheila Millar Sheila Millar

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has…

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has been involved in a variety of audit and compliance projects, including, among other issues, privacy and data security audits, and is experienced in providing crisis management legal support to a variety of national and international companies and associations.

Ms. Millar is a frequent speaker on regulatory and public policy matters, and has authored many articles. Ms. Millar is one of the vice chairs of the International Chamber of Commerce (ICC) Marketing and Advertising Commission, and chair of its Working Group on Sustainability, where she spearheaded the development of the ICC Framework Guides on Environmental Marketing Claims.

Ms. Millar is AV® PreeminentTM Rated by Martindale-Hubbell and for the eigth consecutive year was selected by her peers for inclusion in The Best Lawyers in America® 2018 for her work in practicing Advertising Law. She has also received the distinguished honor of Advertising Law “Lawyer of the Year” 2014 in Washington, DC by Best Lawyers®, and was awarded Advertising and Marketing Lawyer of the Year USA by Finance Monthly for their Finance Monthly Global Awards 2017.

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Photo of Tracy Marshall Tracy Marshall

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She …

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP) and helps clients implement privacy, data security, and security breach response programs, develop internal and public-facing privacy policies to comply with applicable laws, respond to cyber and data security incidents, and manage relationships with service providers and third parties. Tracy advises on structuring and conducting email and text messaging campaigns, sweepstakes, contests, and other promotions, and she helps clients protect and enforce their intellectual property rights.

In addition, Tracy counsels clients on corporate matters and assists with structuring and negotiating a variety of transactions, including licensing, marketing, and outsourcing arrangements.

Tracy is frequently invited to speak at privacy, data security, telecommunications, and advertising conferences and is a contributor to Keller and Heckman’s Consumer Protection Connection blog and Beyond Telecom Law Blog.


To learn more about Tracy’s practice areas, click here.
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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Consumer Protection Connection
  • Organization:
    Keller Heckman
  • Article: View Original Source

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