Uncertain future of transatlantic data flows: Will the United States ever achieve the ‘adequate level’ of data protection?

Abstract

Personal data can be transferred to third countries without any additional measures by achieving the European Commission's adequacy decisions if the third country's data protection level is deemed essentially equal. Only a few countries have obtained this decision, and the United States is no longer one of them, since the European Court of Justice ruled in the Schrems II case that the Privacy Shield Decision could not provide ‘essentially equivalent’ protection for personal data to that provided by European Union legislation, and hence was invalid. This article will discuss what the term ‘essentially equivalent’ means and what it covers. Finally, it will examine and attempt to answer the question of whether the United States will ever reach the mentioned adequate level by comparing the examples of two adequate countries, the United Kingdom and Japan.