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ITI Hosts “Schrems II: One Year Later”

Ahead of the first anniversary of the Schrems II Decision, ITI brought data and privacy experts from the European Commission and industry together to discuss the decision’s implications and the outlook for the future.

The discussion, held on 14 July, featured Bojana Bellamy, President of the Centre for Information Policy Leadership (CIPL), Caitlin Fennesy, Research Director at the International Association of Privacy Professionals, Bruno Gencarelli, Head of Unit for International Data Flows at the European Commission, and Peter Swire, Senior Counsel of Alston & Bird and Professor at the Georgia Institute of Technology, in a debate moderated by ITI’s Vice President and Director General for Europe Guido Lobrano. You can watch a webcast of the recording here.

The discussion kicked off with Bruno Gencarelli reflecting on the last year from the European Commission’s perspective, and how “the pandemic has highlighted that data flows are essential to so many activities and they will be important for how we make it out of this crisis.” For the Commission, high standards of data protection and ensuring data flows are not contradictory objectives. Finding a common solution for transatlantic data flows is not “mission impossible,” and Gencarelli confirmed that the Commission has “intensified dialogue after the EU-US summit to find a durable solution.”

For Bojana Bellamy, the year following the decision has been “a reactive year that has drained many resources that could have been invested in new technological innovation.” She remains, however, optimistic that both sides can understand each other’s concerns and called on the EPDB to “take into account the feedback from industry like the Commission did with the SCCs” and to recognize “that there should be a risk-based approach.”

Caitlin Fennesy outlined concerns from an enforcement perspective, advocating for a more emphasis on how to make risk assessments work in practice, to avoid discouraging partnerships between EU and US providers. Crucially, “without agreement at government level, companies can’t be asked to do this alone.”

For Peter Swire, redress is an equally important issued raised by the Schrems II decision, not least given the difficulties in establishing statutory redress in the US. For this reason, he agreed on the need for mutual understanding and flexibility to overcome obstacles. Swire then went on to further reflect on the broader implications of transatlantic data flows – “the US and EU partnership must stay strong and the importance of a new data transfer deal cannot be underestimated.”

Bruno Gencarelli rounded up the discussion, acknowledging the need to find durable solutions to underpin transatlantic data flows, and recognising precedents with other jurisdictions which are adapted to divergent national systems. Schrems II therefore provided a detailed and public mandate for ongoing discussions.