Lindsay E. Dansdill

Partner, Nielsen, Zehe & Antas, P.C.

Quick Key Points

• It is anticipated that President-elect Biden will immediately implement executive orders undermining President Trump’s policies related to immigration, climate change and management of Covid-19.
• It is also expected that the Biden-Harris team will dedicate substantially more attention to data privacy which is significant to international data transfers.
• California voters recently passed California Proposition 24, the Consumer Personal Information Law and Agency Initiative which expands the state’s consumer data privacy laws.
• The passage of California Proposition 24 will likely prompt additional states to bolster data privacy regulation in near future, inevitably prompting federal regulation to avoid inconsistent regulations amongst the states.
• The 2020 Schrems II decision remains the proverbial elephant in the room related to data privacy.

After an exceedingly scrutinized race with the highest voter turnout in a U.S. presidential election since 1900, former Vice-President Joe Biden and Senator Kamala Harris were ultimately declared the president and vice-president elect. Although President Trump has failed to formally concede the election, President-elect Biden has forged ahead with the presidential transition.

It is anticipated that President-elect Biden will immediately implement executive orders undermining President Trump’s policies related to immigration, climate change and management of Covid-19. It is also expected that the Biden-Harris team will dedicate substantially more attention to data privacy which is significant to international data transfers, particularly in light of the July 2020 Schrems II decision invalidating the EU-US Privacy Shield due to US surveillance concerns.

Although Republicans and Democrats have expressed interest in the passage of federal data privacy legislation, the issue was not a top priority during the Trump administration. However, Ms. Harris largely focused on the issue during her tenure as Attorney General and U.S. Senator. In 2018, Senator Harris strongly criticized Facebook founder Mark Zuckerberg during a hearing addressing the Facebook and Cambridge Analytica scandal for his failure to disclose, among other things, whether Facebook tracks a user’s browsing activity after the user has logged off of Facebook or whether Facebook stores multiple categories of a user’s information.

California voters recently passed California Proposition 24, the Consumer Personal Information Law and Agency Initiative which expands the state’s consumer data privacy laws. For instance, Proposition 24 allows consumers to direct businesses to refrain from sharing personal information for advertising and marketing purposes and removes the time period in which businesses can fix violations before being penalized. A new state agency known as the Privacy Protection Agency was also established to enforce this new set of rules.

The passage of California Proposition 24 will likely prompt additional states to bolster data privacy regulation in near future, inevitably prompting federal regulation to avoid inconsistent regulations amongst the states. While the scope of future federal regulations will largely depend on which party takes control of the Senate, the issue of data privacy will inevitably be an area of national importance. It is further anticipated Mr. Biden will appoint a cybersecurity coordinator within the White House, a position that was eliminated during the Trump administration.

The 2020 Schrems II decision remains the proverbial elephant in the room related to data privacy. While an immediate resolution appears unlikely, Mr. Biden and Ms. Harris appear to be dedicated to increasing data privacy while bolstering global trade. U.S. proponents of globalization are hopeful that a fresh approach to privacy negotiations will strengthen trust within the EU and create a palatable solution for the facilitation of cross-border data transfers.

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