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On the 28th of February 2023, the European Data Protection Board (hereinafter referred to as the “EDPB”) issued its Opinion on the European Commission’s draft adequacy decision regarding the EU-U.S. Data Privacy Framework.

Whilst acknowledging the significant improvements made to the Data Privacy Framework such as the improved new redress mechanism under the Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities, the EDPB’s opinion also highlighted some issues of concern which had previously been raised so as to ensure that the new adequacy decision will be long-lasting. The principal issues of concern specifically relate to the data subject rights, crucial definitions which have been omitted and the broad exemption for publicly available information. In relation to the latter, the EDPB suggested that the Commission clarify the scope of exemptions which are applicable to the principles of the new Data Privacy Framework.

Furthermore, the EDPB emphasised the need to create specific rules concerning automated decision-making which are necessary for the provision of sufficient safeguards.  The EDPB also suggested that information concerning the U.S. legal context would be helpful in the interaction between the Data Privacy Framework with U.S. law.

Finally, while the Board acknowledged the improvements made to the redress mechanism, particularly those relating to the powers of the Data Protection Review Court and its independence, the EDPB also highlighted an issue concerning the application of the standard response of the Review Court. Consequently, the Board opined that the Commission should closely monitor the functioning of the redress mechanism, whilst ensuring the application of the principles of proportionality and necessity.

To recapitulate, whilst the EDPB has acknowledged the progress made by the U.S. in protecting the privacy of European data subjects, areas of concern requiring further clarification and improvement have been highlighted for future consideration.

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