The Safe Harbor judgement is in. Safe Harbor is dead (long live Safe Harbor!)
Many organisations I’ve spoken to have had the cunning plan of adopting model contract clauses as their fall back position to replace their reliance on Safe Harbor.
That’s a cunning plan. It’s right up there with this one:
The reason is that the underlying issues with Safe Harbor transfers to the US will continue to affect transfers to the US under Model Clauses.
Period. End of discussion.
The best that can be said for Model Clauses is that they haven’t been struck down by the CJEU. Yet.
But as national Data Protection Authorities are REQUIRED under the Directive (as confirmed in the Schrems case) to conduct investigations and to assess findings of adequacy of protection of fundamental rights, then expect there to be challenges to transfers under Model Clauses in the immediate future.
Best you can expect is for some breathing room while you figure out your next steps.
This is not a question of commercial competiveness but a matter of prudent business continuity planning for organisations of all sizes. What tools are you using? If model clauses and transfers to the US are the best they are offering, what alternatives are there in the market place?
If no alternative…. hey… you may have a viable business idea to develop (but do it quickly).
But, in reality, Model Clauses to cover transfers to the United States are, on foot of today’s CJEU ruling, as useful as a Chocolate Teapot… perfectly fine until the heat comes.
(Note: Binding Corporate Rules and others are in the same boat!)