Out-Law News 1 min. read

US and Switzerland agree new data transfer framework


The US and Switzerland have approved a new framework designed to facilitate the flow of personal data between the two countries.

The Swiss-US Privacy Shield is based on and aligned with the EU-US Privacy Shield that was finalised last year, according to the US' International Trade Administration. The EU-US framework is the subject of a legal challenge.

US companies will be able to file applications of self-certification under the new regime to the US Department for Commerce from 12 April.

US companies that self-certify their compliance with the principles of the Swiss-US Privacy Shield will be considered to be transferring personal data from Switzerland to the US in a way that complies with the requirements of Swiss data protection law.

The Swiss government said Swiss businesses would not require to put in place "additional contractual guarantees" for data transfers to US businesses that are certified under the new framework.

The new framework, which replaces the previous US-Swiss Safe Harbor agreement, "improves the protection of personal data" for Swiss-US data transfers, the Federal Council of Switzerland said. The framework has been endorsed by Switzerland's data protection authority, although the watchdog will carry out annual evaluations of the framework.

"Various improvements have been introduced in comparison with Safe Harbor," the Federal Council of Switzerland said. "Worth mentioning in particular are the stricter application of data protection principles by participant companies on the one hand and the administration and supervision of the framework by the US authorities on the other. Cooperation between the US Department of Commerce and the Federal Data Protection and Information Commissioner will be intensified."

"In addition, an arbitration body is being introduced to deal with claims that remain unresolved through other available remedies. Lastly, people living in Switzerland will be able to address enquiries relating to the processing of their data by US intelligence services to an ombudsperson in the US State Department," it said.

Acting US under secretary of commerce for international trade Ken Hyatt said the new framework would provide economic benefits to both countries.

"The Swiss-US Privacy Shield will ensure that data flows can continue in a way that provides confidence to individuals and certainty to businesses in both Switzerland and the United States," Hyatt said. "It will enhance transatlantic data protection and support the continued growth of US-Swiss commercial ties, which included two-way direct investment totalling more than $410 billion in 2015."

Data protection law expert Marc Dautlich of Pinsent Masons, the law firm behind Out-Law.com, said earlier this week that industry-developed certification schemes and codes of conduct backed by EU regulators could become the tools by which personal data is transferred globally in the future.

Dautlich said the European Commission demonstrated an appetite for new mechanisms for transferring personal data to emerge from certification schemes and codes of code provided for by the General Data Protection Regulation (GDPR) in a new paper it issued on Tuesday.

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