Page 50 - Internationalist Magazine 2013 66

LEGAL BRIEFS

Is The Safe Harbor

Becoming Unsafe?

Fby Eric Vaughn-Flam Esq.

Eric Vaughn-Flam Esq., the General Counsel for the

Internationalist, shares the association’s legal perspectives

and opinions for today’s ever changing global advertising

landscape.

For companies doing global commerce these days, it is becoming

increasingly dificult to keep up with international privacy standards. This

Eric Vaughn-Flam is a could have severe consequences.

Senior Partner of the irm
Back in the year 2000, the U.S. Department of Commerce and the European
Sanders Ortoli Vaughn-
Commission established a “Safe Harbor” framework1 by which U.S.
Flam Rosenstadt LLP,
companies could comply with European regulations on data transfers.2
www.sovrlaw.com where
This agreement however has been under increasing ire,3 largely criticized
he heads the Intellectual
for permitting rampant violations to occur without penalty. The FTC
Property and Advertising
Commissioner, Julie Brill, has admitted receiving a list of 400 companies
Departments
falsifying certifying compliance, yet maintains the FTC vigorously enforces

its provisions. The recent revelations of the U.S. National Security Agency
1 SafeHarborArrangementOficialsite
(http://www.export.gov/safeharbor).
PRISM have thrown gasoline on the ire concerning outrage of wholesale
2 data release.
Particularly EU Directive 95/46/EC
regarding protection of personal data.
Companies operating in the European Union
are not allowed to transmit personal data to
In the wake of the increasing criticism of the U.S.-EU Safe Harbor, a German
countries outside of the European Economic
Area unless there are adequate assurances Court has independently ruled recently that Google’s general data-use terms

that the date will be protected. U.S. companies violated German law. Under proposed EU rules, U.S. companies could be
must certify that they have satisied the Safe
Harbor Privacy Principles which require: hit with ines potentially exceeding $100 million. The Federation of German
Notice to consumers of data collection
and use; Consumer consent; Transferee Consumer Organizations (“VZBV”) has targeted Google as well as Apple and
certiication; Security measures; Relevant of
Samsung since 2012. This decision is widely viewed as an assault on the Safe
the purpose used; Disclosure to consumers;
and enforcement of the foregoing.
Harbor.
3 Criticismbeganon2002withtheirst

review by the European Union: (http://
europa.eu/justice_home/fsj/privacy/ The demise of the US-EU Safe Harbor could have catastrophic effects for
docs/adequacy/sec-2202-196/sec-2002-
196_en.pdf ) then again in 2004 (Http:// companies doing business internationally. Without it, there would be no
ec.europa.eu/justice_home/fsj/privacy/docs/
adequacy/sec-2004-1323_en.pdf) additional mechanism by which international privacy standards can be reconciled

commentary in 2008 “US Safe Harbor- Fact without tremendous risk. U.S. Companies would be subject to European
or Fiction?” Chris Connolly (Galexia) Privacy
Laws and Business International, issue 96, data protection authorities as we have now seen from Germany – rather than
December 2008 (http://www.galexia.com/
public/research/assets/safe_harbor_fact_ U.S. agencies. Companies would be required to expend massive resources to
or_iction_2008/).
achieve compliance on a transaction-by-transaction basis.

48 the internationalist