Debate is raging within the community of international privacy professionals as to whether this week’s judgment permits of the use of the EU Standard Contractual Clauses mechanism for EU to U.S. data transfers. One perspective is that the arc of legal ambiguity affects only those U.S. entities that are directly subject to the rules in FISA section 702 and Executive Order 12333, as they pertain to generalised surveillance of foreign nationals abroad, which would cover the likes of telecommunications backbone providers and ISPs, with entities falling outside of these areas being able to use Standard Contractual Clauses, on an ongoing basis, or as an alterative to the use of Privacy Shield. These are complex legal issues and the law is not settled, so concerned entities need to take considered advice, but regardless of how this issue is resolved, this week’s judgment should quickly lead to a conclusion that data use needs to be minimised, not least to reduce the risk of conflict with the EU legal order.
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