Cross-Border Data Transfers in the Real World – Privacy Shield, Now What?

Personal data of individuals – consumers and employees – is in constant motion across international borders. Nonetheless, existing privacy laws purport to prohibit organizations in many countries from transferring data to another jurisdiction in the absence of adherence to various legal frameworks or contractual mechanisms designed to enhance the protection of personal data. Those legal frameworks suffered a blow last year when the European Court of Justice struck down the 15 year old Safe Harbor Framework. A year later, the EU-US Privacy Shield Framework has been approved as a replacement, and many companies have begun to certify, but the new Framework remains subject to potential legal challenge. Other European data transfer mechanisms – standard contractual clauses and Binding Corporate Rules – are also subject to legal challenge. And other jurisdictions around the globe in South America, Asia and elsewhere, are imposing restrictions on the transfer or personal data and in some cases even calling for data localization. Yet, data continues to flow in real-time.