Biden’s Privacy Order Slaps a Band-Aid on the EU-US Data Crisis

At Workday, a California-based HR software provider with more than 2,000 customers headquartered in Europe, the mood is optimistic. Chandler Morse, vice president of corporate affairs, believes this is evidence that the US and EU can reach an agreement on more than just the privacy shield problem. “There’s a number of other tech issues that are pending in the EU-US bilateral, so for many of us this is a positive sign that the EU and the US can work together,” he says, adding that the EU AI Act and Data Act could also be beneficiaries of this new cooperation.

Yet privacy campaigners are not impressed—either by greater collaboration or Biden’s offer of a so-called Data Protection Review Court, which will allow EU citizens to challenge how US security agencies use their data.

“However much the US authorities try to paper over the cracks of the original Privacy Shield, the reality is that the EU and US still have a different approach to data protection which cannot be canceled out by an executive order,” says Ursula Pachl, deputy director general of the European Consumer Organization (BEUC). “The moment EU citizens’ data travels across the Atlantic, it will not be afforded similar protections as in the EU.”

Biden’s executive order will now be sent to Brussels, where EU officials could spend up to six months scrutinizing the details. A new data agreement is expected to be ready around March 2023, although privacy activists are expected to challenge the ruling in court. “The order is never going to be enough for the privacy community in Europe,” says Tyson Barker, head of technology and global affairs at the German Council on Foreign Relations.

The European Commission believes the new agreement could survive a court challenge. But the US has been quietly hedging its bets, says Barker. At a conference in October 2021, Christopher Hoff, deputy assistant secretary for services in the Biden Administration, said he supported the global expansion of a rival privacy agreement—the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules system. “The United States wants to say, actually, we have an alternative and we’d like to set this as the global standard,” Barker adds.

Schrems, however, is not worried about another privacy agreement curbing the EU’s influence. “I don’t personally care what standards other countries prefer,” he says. “I know the law in the EU.”