The U.S.-E.U. Safe Harbor Framework The U.S.-E.U. Safe Harbor Framework New Developments in Data Flows, Standards, & Compliance Damon Greer U.S. Department of Commerce August 19, 2008

2 Safe Harbor Review  How We Got Here  European Union’s Data Protection Directive (95/46/EC) in force 1998; Member States implement national data protection laws;  U.S. does not meet EU’s adequacy requirement; U.S. Dept. of Commerce and European Commission negotiate compromise: U.S.- EU Safe Harbor Framework; in force November 1, 2000;  Nearly 1,600 U.S. organizations certified to Safe Harbor; 240 in first six months 2008 (45 in July)

3 Adequacy via the Safe Harbor  Safe Harbor certification is voluntary representation to European business partners and European citizens that U.S. companies will comply with the Safe Harbor Framework;  Eligibility limited to entities who fall under jurisdiction of the FTC and DOT – financial services sector, insurance, telecommunications common carriers, non-profits and meat processing enterprises not eligible ;  Nearly 1,600 U.S. organizations, including multinationals and SMEs are certified; valid for one year and commitment must be reaffirmed annually

4 The Safe Harbor Framework 7 Privacy Principles7 Privacy Principles 15 Frequently Asked Questions15 Frequently Asked Questions EU’s Adequacy DeterminationEU’s Adequacy Determination Letters Between DoC & ECLetters Between DoC & EC Letters Between FTC, DOT, and ECLetters Between FTC, DOT, and EC

5 Compliance & Enforcement  In general, enforcement takes place in the U.S. in accordance with U.S. law (Section 5 Authority under FTC Act);  Private Sector Enforcement which has 3 elements: verification, dispute resolution, and remedies;  Human Resources* – Special Case: Must use EU data protection authorities for dispute resolution & follow national data protection laws with regard to HR; know about works councils

6 Compliance & Enforcement  U.S. culture of customer service is highly effective in addressing customer complaints/concerns, perhaps more than comprehensive legislation;  Independent recourse mechanisms are required to notify DoC of a company’s failure to comply with the Safe Harbor principles, and FTC has authority to take action.  No referrals or complaints filed with the EU DPAs; TRUSTe, BBB, DMA, and others report internal complaints resolved.

7 The Article 26 Derogations The Article 26 Derogations  Joining Safe Harbor is not the only means of meeting the EU Directive’s requirements  Choices include:  “Unambiguous” consent of the data subject  Necessary to perform contract  Codes of Conduct  Standard Contractual Clauses  Direct compliance/registration with EU Authorities

8 Developments in Data Protection/Privacy  ISO’s Joint Technical Committee Work on Global Privacy Standard (4 th Working Draft);  ISO’s JTC-1 SC 27 Proposes “Study Period” to examine forensic processes’ standardization for digital evidence;  International Conference of Data Protection & Privacy Commissioners serves as liaison to ISO privacy standards development;  Standards Council of Canada convinces ISO/TMB to study creation of Technical Committee for Privacy – June 2008

9 Developments in Data Protection/Privacy cont’d  EC’s DG for Information Society & Media proposes draft privacy rules for RFID technologies;  Article 29 Working Party’s 2008 Work Program includes standards development, e-discovery, review of regulatory framework for ecom- munications within EU, search engines and new technologies with privacy implications;  Since autumn 2007, rising concern in the EU over the use of e-discovery for massive data transfers to U.S. either in anticipation of litigation or as a result of ongoing civil court action.

10 Transatlantic Engagement  Continued dialogue with the European Commission; Conference on International Transfers of Personal Data, Brussels, October 2006; October 2007 in Washington, DC;  Workshop on International Transfers of Data, October 21, 2008, Centre de Conferences Albert Borschette (CCAB), Rue Froissart 36, B-1049 Brussels, Belgium  Increased Emphasis by Industry on Harmonizing Approval Process for Binding Corporate Rules; push by Art. 29 WP Chair has resulted in new BCR documents

11 We Self-Certify Compliance with: Safe Harbor Certification Mark

12 For additional information or questions Damon C. Greer U.S. Department of Commerce Telephone: (202) Fax: (202)