On-going efforts to provide clarity and guidance on transatlantic data transmission are unlikely to be seen soon as the European Data Protection Supervisor (EDPS) has outlined concerns over the robustness of the Safe Harbour successor, EU-US Privacy Shield.

European Data Protection Supervisor, Giovanni Buttarelli, outlined his concerns on whether the proposed agreement will provide adequate protection against indiscriminate surveillance as well as obligations on oversight, transparency, redress and data protection rights.

“I appreciate the efforts made to develop a solution to replace Safe Harbour but the Privacy Shield as it stands is not robust enough to withstand future legal scrutiny before the Court,” said Buttarelli. “Significant improvements are needed should the European Commission wish to adopt an adequacy decision, to respect the essence of key data protection principles with particular regard to necessity, proportionality and redress mechanisms. Moreover, it’s time to develop a longer term solution in the transatlantic dialogue.”

This is in fact the second time in a matter of months an official body has expressed concerns over the EU-US Privacy Shield, as the Article 29 Working Group voiced its concerns over the mass surveillance and oversight shortcomings that it believes are found in the pact. Back in April, WP29 commented Privacy Shield had made progress but still hadn’t covered the cracks which had Safe Harbour kicked out last year.

“The WP29 notes the major improvements the Privacy Shield offers compared to the invalidated Safe Harbour decision. Given the concerns expressed and the clarifications asked, the WP29 urges the Commission to resolve these concerns, identify appropriate solutions and provide the requested clarifications in order to improve the draft adequacy decision and ensure the protection offered by the Privacy Shield is indeed essentially equivalent to that of the EU,” said the WP29 group in its official opinion at the time.

The new Privacy Shield agreement does in fact encourage European businesses and organizations to be more considered and conservative when sharing data with US entities, however critics of the new agreement have highlighted there are still too many exceptions where the US and its intelligence agencies can move around the agreement.

While the opinion of the WP29 is respected throughout the industry, it was not a concrete sign that anything within the Privacy agreement will change. This is the same for the EDPS. There are no guarantees the agreement will be changed following Buttarelli making his opinion public, though it may be a good indicator as to what need to be done to ensure the pact stands up to scrutiny under the spotlight from the European Court of Justice. This is certainly the case for David Mount, Director of Security Solutions at Micro Focus.

“Buttarelli talks of a need for significant improvements before the agreement can be viable, which raises a key point around the self-certification aspects of Safe Harbour as it once was,” said Mount. “In the past, businesses could self-certify as compliant with Safe Harbour by simply ticking a box. But this does not create a transparent and trusting climate – in fact it does the very opposite, as is the case in any self-regulated environment.

“Any new agreement must be more robust, as per Buttarelli’s comments, and addressing the key issue of self-certification would be a significant step. It will be interesting to see how the EU Commission responds to the EDPS and how negotiations will continue to address the varying issues of self-certification and trust.”

Support for the agreement has been mixed as some European corners have voiced concerns, and some US opinions have been relatively positive, though this may be considered unsurprising. MEP Jan Philipp Albrecht and Edward Snowden were two who demonstrated a critical stance (see accompanying picture), while Microsoft become one of the first major US tech companies to confirm its support of the EU-US Privacy Shield.

Back in April, John Frank, Vice President EU Government Affairs at Microsoft said “we recognize that privacy rights need to have effective remedies. We have reviewed the Privacy Shield documentation in detail, and we believe wholeheartedly that it represents an effective framework and should be approved.”

Although Microsoft has demonstrated a desire to bring the issue to an end, it has also found itself on the wrong side of data requests from the US government, proving it’s no push over. The company has been involved in a drawn out lawsuit, as Microsoft has refused the US government access to data which is has stored in its Dublin data centre, telling the government it “must respect the sovereignty of other countries”.

The company has also filed a lawsuit against the US government and its associated agencies, arguing the right that customers should have the right to know when the state accesses their emails or records, as well as creating the Data Trustee model. The Data Trustee model is seemingly an effort to rebuild trust in the US business, as it hands control of its data over to a European company, in this case Deutsche Telekom, who have to give consent for a Microsoft employee to access the data.

“Businesses have already started looking to alternatives for legitimate data transfers out of the EU in case the Privacy Shield option, once formally adopted, should be taken away,” said Deema Freij, Global Privacy Officer at Intralinks. “For example, Binding Corporate Rules and EU Model Clauses are still seen as strong alternatives. Businesses have been switching to EU Model Clauses to transfer personal data to the US, which they can continue to do on an ongoing basis.

“The responsibility for businesses is only going to increase when the General Data Protection Regulation (GDPR) comes into full effect in May 2018. The next two years will be a huge test for organisations across the world as they begin to realise that data sharing practices will continue to fall under close scrutiny as the concept of data privacy evolves further.”

The EU-US Privacy Shield has made progress in addressing the concerns voiced by European citizens, companies and legislative bodies in recent months, though it is unlikely to be the final answer. In three months, two separate, independent and widely respected opinions have highlighted the short-comings of the agreement, which doesn’t inspire a huge level of confidence. How the Privacy Shield creators react to the opinion is yet to be seen, though it could be one of the deciding factors on how long the transatlantic data transmission argument continues.