Schrems: FTC Firings the Latest Nail in Coffin for Data Privacy Framework
The EU-U.S. Data Privacy Framework could be on the verge of collapse in the wake of President Donald Trump firing two FTC Democrats and ongoing uncertainty about the previous administration’s executive order to implement the framework for data transfers, said Austrian privacy activist and EU lawyer Max Schrems during a Tuesday webinar that George Washington Law School Professor Daniel Solove hosted.
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The firings last week of FTC Commissioners Alvaro Bedoya and Rebecca Slaughter are raising new concerns about the fate of trans-Atlantic personal data transfers (see 2503190046). One reason is that the European Commission declared the U.S. has adequate privacy protections for entities to be able to transfer data there -- despite the lack of a national U.S. privacy law -- based on a combination of factors that include the existence of the FTC and the Privacy and Civil Liberties Oversight Board (PCLOB) as independent U.S. bodies, said Schrems, founder of the nonprofit Noyb.
While the FTC isn’t constitutionally independent like European data protection authorities, it was considered “legally independent,” which was “good enough” to meet Europe’s standards, he said. However, Trump’s FTC firings “obviously now raise a lot of questions, because [if] people are just actually kicked out,” it undermines the argument that the agency is independent, he said. The same thing holds for PCLOB, where Democrats were also fired (see 2502250052), he said. “By law, they’re independent, but people … got kicked out.”
Possibly making matters worse, Schrems sees uncertainty around the U.S. maintaining a “redress mechanism.” EU law requires a court where one can appeal, so a 2022 Biden administration executive order created a redress mechanism to meet that requirement. However, an EO can be annulled at any time, and Trump has been overturning many Biden orders, said Schrems, adding that Project 2025 specifically mentioned this EO as something to scrap.
“The FTC and PCLOB were like decorations,” he said. The main pillar … is this redress court, and that's the one that's only based on his executive order.” If Trump scraps it, “the whole system would collapse,” he said. "If they kill the executive order tomorrow, then basically almost any European company is basically acting illegally tomorrow."
It's “quite problematic” that the EC hasn’t said much about the situation, the privacy activist said. “They tell companies, ‘OK this is good and just continue,’ [but] they may have to shut down in a week or two ... There are literally billions of Euros [worth of] investments made in all these systems on a very wacky legal basis, and the Commission doesn't even warn European business to say, ‘Guys, maybe this doesn't look all too good.’”