FR 2021-01803

The document from the Federal Register details the Department of Commerce’s intent to submit an information collection request related to the EU-U.S. Privacy Shield to the Office of Management and Budget (OMB). This request concerns the arbitration mechanism that allows individuals from the European Union to address disputes about data privacy. The International Trade Administration is seeking public comments on this collection request, which aims at reviewing the impact of reporting requirements and reducing burdens on the public.

General Summary

The EU-U.S. Privacy Shield Framework is an arrangement between the European Union and the United States governing transatlantic exchanges of personal data for commercial purposes. This document outlines the submission process for an information collection request aimed at maintaining a list of arbitrators who resolve disputes under this framework. The intended list includes at least 20 arbitrators selected based on criteria such as independence, integrity, and expertise. The framework requires organizations to self-certify and, upon doing so, comply with its requirements, including agreeing to arbitration in case of disputes.

Significant Issues or Concerns

Several concerns arise from this document. Firstly, the notice lacks transparency regarding the estimated costs of implementing this information collection process, which makes it challenging to assess fiscal responsibility or identify potential wastage of funds. Additionally, the arbitration process outlined in the document could be simplified to enhance public understanding of its significance and operation. The complexity of the language might alienate individuals who do not have a legal or technical background.

Furthermore, the document does not specify the current number of arbitrators or whether there is an immediate need to reach the target of 20 arbitrators. This absence creates uncertainty about the urgency or necessity of the request. Although the notice specifies a response time of 240 minutes, it lacks explanatory detail on what this time frame includes, leaving room for interpretation and potential ambiguity.

Moreover, a key point of concern is that the EU-U.S. Privacy Shield Framework itself has faced legal challenges, which could affect its stability and the relevance of the arbitral mechanisms discussed. Stakeholders need clarity on how these legal issues might influence the arbitration process.

Impact on the Public

Broadly, this document affects individuals concerned with data privacy and organizations involved in transatlantic data transfers. For the general public, especially those in the EU who use U.S. services, this mechanism provides a structured process to resolve privacy disputes. However, the potential complexity and ambiguity in the process might limit its accessibility and effectiveness for average users.

Impact on Specific Stakeholders

For businesses that handle transatlantic data, the framework offers a way to demonstrate adherence to agreed privacy standards, possibly enhancing trust and facilitating smoother data operations across borders. However, the potential instability of the framework and the arbitral uncertainty might raise compliance risks and costs.

For the legal professionals selected as arbitrators, this initiative presents opportunities for involvement in international data privacy adjudication. Yet, despite the mention of necessary qualities such as independence and expertise, there is little detail on how arbitrators are chosen, which might necessitate clearer guidelines to ensure fair and efficient selection processes.

In conclusion, the document highlights an essential mechanism for data privacy but could benefit significantly from enhanced clarity, transparency, and consideration of ongoing legal challenges related to the EU-U.S. Privacy Shield.