It is the beginning of 2016, and American companies are anxiously awaiting news of whether or not a new “Safe Harbor 2.0” will emerge. In October of 2015, the European Court of Justice declared invalid Safe Harbor 1.0 in the Schrems decision. This had an immediate effect on any American company collecting personal data from the EU by removing the legal basis for this kind of data transfer. As of October 2015, consumer, client, and even employee data cannot be legally transferred to the US under the Safe Harbor Framework.
Fortunately, the data protection regulators (“DPAs”)recognized the turmoil this decision created within the business community on both sides of the Atlantic. As a result, the Article 29 Working Party (which is the convention of DPAs from each of the EU Member States) issued an enforcement moratorium on enforcement actions until the end of January 2016, so that they could assess the effectiveness of data transfer tools available. As part of this moratorium, the Working Party called on “…Member States and European institutions to open discussions with U.S. authorities in order to find legal and technical solutions”; and that the “current negotiations around a new Safe Harbor could be part of the solution.”