Trump vacancy raises consternation with Europe

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A key vacancy in the State Department is creating friction between the European Union and United States over a new agreement affecting thousands of U.S. companies that do business in Europe.

The agreement, known as the privacy shield, allows businesses to swiftly send personal data across the Atlantic, something that affects a huge swath of U.S. companies, from Facebook and Apple to Netflix and Google.

Without the shield, companies that operate in Europe would have to enter into special contracts to transfer personal data.

{mosads}EU officials are worried that the Trump administration has yet to nominate an ombudsman at the State Department to oversee complaints from Europeans about the access U.S. national security agencies may have to their data.

“This is a very clear-cut requirement from our side,” European Commissioner for Justice Vera Jourová told The Hill after the end of this week’s meetings.

She said U.S. officials are “aware that this is one of the important issues for us and that we will be following very closely this situation.” If the position is filled, it will increase EU trust in the shield, she said.

Jourová told The Hill that her talks with Commerce Secretary Wilbur Ross and other U.S. officials left her “cautiously optimistic” and that she received assurances, but she said her delegation also left with unanswered questions.

There are no signs that the vacant position could derail the agreement, but it has become a growing point of contention on the European side.

It’s also a symptom of the larger challenge Secretary of State Rex Tillerson has faced in filling roles in the department amid a hiring freeze and scuffles with the White House over personnel.

The U.S.-EU privacy shield replaced the defunct Safe Harbor agreement struck down by the European Court of Justice over lack of sufficient data protections. About 2,400 companies are now participating in the voluntary program.

Though officials on both sides of the Atlantic say the deal boosted privacy protections, it has generated skepticism in Europe over privacy, with EU’s top data watchdog repeatedly raising concerns.

Establishing a Privacy Shield ombudsperson with a direct line to the secretary of State was supposed to appease critics of the deal.

It could remain empty for months, even in the event of a swift nomination, given the often lengthy confirmation process for President Trump’s nominees in the Senate.

The White House did not return a request for information on when to expect a nomination.

The administration has delegated someone to fulfill the duties of ombudsperson for the time being, passing the authorities to Judith Garber, who is the acting assistant secretary of State for oceans, environment and science.

Yet this sends the signal that filling the position is not much of a priority for the administration.

“I think that European countries will be looking for signs that the administration sees Privacy Shield as being something that the U.S. government supports,” said Oliver Yaros, a partner in the intellectual property and IT group in Mayer Brown’s London office. “I think that it being vacant is just not a good sign.”

“I don’t think it would necessarily sink the Privacy Shield if no one is appointed right now,” Yaros added. “I think both sides want this to work.”

Tech industry representatives, who are eager to see the pact continue, also acknowledge that the vacancy will continue to be a sticking point, though they say it is highly unlikely to derail the agreement in the short-term.

“I think this is something that the Europeans will stress time and again to their U.S. counterparts,” said Thomas Boué, director of The Software Alliance’s policy activities. “These things take time. If we were to focus on what could be better, we’re always going to find something.”

For now, the European side appears to be taking a wait-and-see approach.

Jourová noted that, while she would like to see the new administration fill top data privacy roles swiftly, “we are not giving any deadlines because we understand that the process is rather complicated.”

“It is not a distrust which we might have towards the acting people, but of course we would like to see these institutions, which play such a crucial role for Privacy Shield, running,” Jourová said, also pointing to vacancies on the Privacy and Civil Liberties Board, an independent body within the White House that oversees government surveillance activities.

Trump selected a former law clerk to the late Justice Antonin Scalia to chair the oversight board at the end of August, after coming under scrutiny for not issuing any nominations to the five-person body even as it was whittled down to one member.

On other Privacy Shield matters, European officials are looking for immediate answers from the new administration. Jourová spoke of the need for “clarifications” on procedures surrounding U.S. access to data for national security purposes, though she would not expand on any particular concerns.

Those answers will inform a final assessment on the review to the European Commission that she plans to complete by the end of October, paving the way for the Privacy Shield to be renewed for another year.

Meanwhile, French and Irish privacy groups are challenging the pact in European courts, two cases that could yield developments later this year.

Tags Rex Tillerson Wilbur Ross

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