What Happens to Privacy Shield with Trump? A New Executive Order Causes Agitation

While everybody is talking about Trumps plans to build a wall at the border to Mexico, he signed an Executive Order that could have severe consequences for Europe and European businesses. One section of the „Executive Order on Enhancing Public Safety“ concerns the privacy rights of US citizens and non-US-citizens in the US:

Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

Agencies are to exclude non-US-citizens from protections of the Privacy Act when it comes to personal data. While personal data of American citizens has to be protected, this does no longer count for non-US-citizens.

This has potential to have consequences for Europe as well, because of the EU-US Privacy Shield. This framework guarantees, theoretically, that European Data in the US is protected in a way that corresponds to the European standards of data protection.

One key point of the Privacy Shield is that data of Americans and of foreigners is treated and protected equally. “The promise of equal treatment for Europeans was a cornerstone of the Privacy Shield agreement.” The above quoted section, however, levers out this equality. Therefore, theoretically, Privacy Shield could be in trouble.

Obama’s administration also contributed to the loosening of data privacy by expanding the rights of the NSA just before Obama handed over the presidency. According to the New York Times, from now on the NSA is allowed to share internationally intercepted communication data with 16 other intelligence agencies, before they have to apply any data protection measures.

Edward Snowden tweeted on this subject:

EU silent as US government suspends legal framework enabling the US-EU data-sharing pact (#PrivacyShield).

(Source: Twitter)

However, according to The Register and a statement by the European Commission, at least the changes in the Privacy Act would not have consequences for Privacy Shield.

"We are aware of the executive order on public safety," noted the statement. "The US Privacy Act has never offered data protection rights to Europeans."

Right now, it appears to be the case that Privacy Shield is not effected by the Privacy Act, which is probably meant to aim at illegal immigrants – which does not make it any better. However, it is a possibility that Trump will not stop there, with loosening privacy policies in the US. If this continues it is a possibility that Privacy Shield has to be reviewed again.