Judge Peck on the EU-U.S. Privacy Shield
This evening I attended a discussion hosted by the Sedona Conference at the offices of BakerHostetler at Rockefeller Center in Manhattan. The topic of the discussion was, "Practical Solutions to the Challenges and UncertaintyAssociated with the EU-U.S. Privacy Shield". The panel was composed of Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York; Emily Fedeles, an associate with BakerHostetler; and Stacey Blaustein, a Senior Attorney and Global E-Discovery Lead at IBM.
The panel briefly discussed the Schrems decision of a year ago. They laughed about how ironic it was that a law student had found the time to bring the case, and joked that someone could have prevented all the trouble caused by the overturning of the U.S./E.U. safe harbor scheme by giving him a job with an American law firm. The group focused on the new privacy shield adopted in response to the Schrems decision and the General Data Protection Regulation which will be fully implemented in May 2018 in the European Union after a two year transition period.
Stacey Blaustein noted that business can certify online at https://www.privacyshield.gov. The site leads companies through the process step by step. She discussed how the new framework has avenues of redress built in. The FTC has jurisdiction under section 5 of the FTC Act for adjudicating violations of the Privacy Shield Principles. Blaustein mentioned the September 30, 2016 deadline for companies to self-certify and gain a nine month grace period to update contracts made with data processors.
Ms. Fedeles said that under the new framework companies would have a 45 day deadline to address specific concerns raised by complainants. She also noted the many companies have already certified. See the list here.
Ms. Blaustein talked about the onward transfer or downward stream exchange of data, and mentioned that vendors may not have to certify but need to comply with the same standards as the companies who engage them.
The panel noted the the FTC's jurisdiction only extends to the industries that it regulates. Ms. Blaustein noted that is precluded from exercising jurisdiction over transportation.
Judge Peck talked about the anonymization of data as a potential solution to the problem of producing documents covered by European data privacy laws. He speculated that under the new GDPR review will still take place in the European Union, with anonymization taking place before ESI was transferred to the United States.
Ms. Fedeles noted that certification can be rescinded, which would lead to a company having to delete the data it had collected. Audits are conducted under the new privacy shield regime.
Judge Peck discussed cross border discovery in the context of the 1987 United State Supreme Court decision, Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa,482 US 522 (1987) . Five factors were given to judge whether or not international discovery could be conducted despite a foreign blocking statute:
"(1) the importance to the . . . litigation of the documents or other information requested;
"(2) the degree of specificity of the request;
"(3) whether the information originated in the United States;
"(4) the availability of alternative means of securing the information; and
"(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located."
Judge Peck noted that over the years two additional factors were added in effect to this Societe Nationale test - the hardship imposed on the producing party and whether or not the request was made in good faith. He blamed bad lawyering for over relying on the fifth factor to justify cross border discovery.
He mentioned the 2007 'Christopher X' case in which a French court only imposed a €10000 fine for the violation of a blocking statute, has been used in American courts to encourage the practice of violating such statutes.
Judge Peck warned that under the new GDPR companies could face fines potentially high as 4% of global gross revenue - not just profit. He said if foreign data currently located in the United States no longer fell under provisions allowing for its exchange, there was a good argument for it being protected under cross border discovery rules, but he felt that this was something other judges would have to be educated about.
Judge Peck noted that a party won't necessarily be sanctioned for the disclosure of private data it moves 'downstream', if it uses proper contracts. He did not know if a negligence standard or something else would be used to evaluate whether or not a party had used proper methods for transferring data.
Ms. Blaustein noted that if possible recipients should only get data for a specific purpose. The panel reminded the audience that the United Kingdom after Brexit, and Switzerland would not be bound by European data privacy laws.
Judge Peck observed that Britain was one country in which discovery could be obtained quickly through the Hague Convention - in part because the British disclosure process is similar to American discovery.