With the fall of Privacy Shield and the Safe Harbor program, what can we expect for the future of transatlantic data transfers? Can the EU and US work out a trade deal? 

 

More on Lothar Determann.

 

SPEAKERS

Wayne Stacy, Lothar Determann

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology's Experts Series podcast. This is Wayne Stacy, the Executive Director for BCLT. And today we're going to talk about the future of transatlantic data transfers. And we have with is one of the great experts in the field, Dr. Lothar Determann. Doctor Determann or I'm gonna go with Lothar for now was or is a professor, I guess lecturer is the right title. But he's a lecturer since 2004 of computer law and data privacy at Berkeley Law. And since 1995, he's been a tenured professor in Germany. So he brings expertise on the academic side from both sides of the Atlantic, if you look at his publications, Determann's Field Guide to data privacy law in California privacy law, practical guide and commentary. He's actually teaching out of that this semester. And this semester, or next semester, he's got the California privacy law course that he'll be teaching at Berkeley Law. So actually, if you go through the whole list, we can spend the 15 minutes talking about the scope of all of his work, but I'll just leave it at this: he knows a lot about transatlantic data transfers. So thank you for coming today.

 

Lothar Determann  01:29

Thanks for inviting me, Wayne.

 

Wayne Stacy  01:31

So what I want to turn to first is the fact that there seem to be some large finds coming out of out of Europe these days, and a slow eroding, or maybe a fast eroding of some of the shields that we used to have. So the Privacy Shield went down, you saw the Safe Harbor program go down in 2015. And now you're starting to see these new standard contract contractual clauses coming out. The real question about all of this is people get nervous is what does this mean for transatlantic data transfers, and in what's the big picture going to look like over the next few years for for US companies.

 

Lothar Determann  02:14

For US companies, the biggest challenge has been that the general data protection regulation has extended and clarified the realm of applicability to some US companies, but also that European companies are under evermore pressure and transferring personal data to the US. European Union is a trade zone Originally, it was called the European Economic Community when they started looking at harmonizing data protection law. And the main goal was to make it easy for companies to cooperate within the bloc and transfer data across borders. So the official title of what is now often referred to as the Data Protection Directive was really about the free flow of data in Europe. And it was kind of a compromise to say, if we're all trusting each other with data, the Germans and the Spaniards and the French and the Brits at the time before Brexit, then we do need to have a prohibition from just transferring it onward somewhere else. And that was in the directive of 1995. That was there to allow more Corporation more sharing more flow within Europe. And this prohibition of transferring to the US wasn't a real big deal in the first years, because there was a general understanding that the US has privacy laws, too. And the commission worked out a compromise where US companies could sign up for a voluntary program, the Safe Harbor program, and commit to basically complying with the European rules. And then European companies could share data with them, just as if they were in Europe. But after the Snowd