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Privacy Shield Replacement Likely, But Not Long For This World

LegalTech News

18 Aug 2020

Miriam Wugmeister spoke to Legaltech News about the potential for a replacement for the EU-U.S. Privacy Shield, which the European Court of Justice dismantled in July.

Legaltech News reported that any reforms could look “somewhat nebulous and could immediately run afoul of the way that courts have traditionally been used as a platform for civil redress,” citing the example that in the U.S., constitutional requirements dictate that “no one can bring a lawsuit unless they can show that they suffered damages, a practice that runs counter to the clandestine nature of intelligence agencies.”

“There is no government in the world that says, ‘Hey, we think you are a terrorist. We want to do secret surveillance on you. If you want to challenge that please come to court and do that.’ So what people have in their head when they think about judicial redress, that’s got to be flawed. That can’t be the answer that the European Court of Justice was really thinking about,” Miriam said.

Miriam noted that what the EU is looking for in terms of U.S. reform could become clearer in the near future, however. In anticipation of Brexit, she suggests the European Commission would likely be evaluating the UK’s data protection stance to determine its adequacy for transfers post-split.

“It will be very interesting to see when the commission reviews the UK,” Miriam said. “Maybe there is something that the UK does. And maybe we could say, ‘Oh, you know that’s an interesting idea, maybe the U.S. can do that too.”

Read the full article (subscription required).

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