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Implementing Decision (EU) 2023/1795 · binding on its addressees · dated 10 Jul 2023 [in force]","attribution":{"prepared_by":"European Commission","published_by":"Publications Office of the EU","published_in":"Official Journal of the European Union","document_type":"implementing_decision","legal_nature":"binding_adopted","addressees":["the Member States"],"dates":{"document_date":"2023-07-10","entry_into_force":"2023-07-10","locators":{"document_date":"CELLAR 32023D1795 work_date_document","entry_into_force":"CELLAR 32023D1795 resource_legal_date_entry-into-force (earliest)"}},"adoption":null},"context":{"act":{"work_id":"spaces/gdpr/level-2/implementing-acts/2023-1795-adequate-protection-under-the-eu-us-data-privacy-framework","path":"/gdpr/level-2/implementing-acts/2023-1795-adequate-protection-under-the-eu-us-data-privacy-framework","name":"Commission Implementing Decision (EU) 2023/1795","number":"2016/679","celex":"32023D1795","title_official":"COMMISSION IMPLEMENTING DECISION EU 2023/1795 of 10 July 2023 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate level of protection of personal data under the EU-US Data Privacy Framework (notified under document C(2023)4745) (Text with EEA relevance)","document_date":"2023-07-10"},"position":{"kind":"annex","key":"annex-iv","index":4,"articles":4,"annexes":8},"prev":{"path":"/gdpr/level-2/implementing-acts/2023-1795-adequate-protection-under-the-eu-us-data-privacy-framework/annexes/annex-iii","key":"annex-iii","title":"ANNEX III"},"next":{"path":"/gdpr/level-2/implementing-acts/2023-1795-adequate-protection-under-the-eu-us-data-privacy-framework/annexes/annex-v","key":"annex-v","title":"ANNEX 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\"Figure

Office of the Chair

UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

\n\n\nJune 9, 2023\n\nDidier Reynders\n\nCommissioner for Justice\n\nEuropean Commission\n\nRue de la Loi / Wetstraat 200\n\n1049 Brussels\n\nBelgium\n\nDear Commissioner Reynders:\n\nThe United States Federal Trade Commission (“FTC”) appreciates the opportunity to address its enforcement role in connection with the EU-U.S. Data Privacy Framework (“EU-U.S. DPF”) Principles. The FTC has long committed to protecting consumers and privacy across borders, and we are committed to enforcement of the commercial sector aspects of this framework. The FTC has performed such a role since the year 2000, in connection with the U.S.-EU Safe Harbor Framework, and most recently since 2016, in connection with the EU-U.S. Privacy Shield Framework. On July 16, 2020, the Court of Justice of the European Union (“CJEU”) invalidated the European Commission’s adequacy decision underlying the EU-U.S. Privacy Shield Framework, on the basis of issues other than the commercial principles that the FTC enforced. The U.S. and the European Commission have since negotiated the EU-U.S. Data Privacy Framework to address that CJEU ruling.\n\nI write to confirm the FTC’s commitment to vigorous enforcement of the EU-U.S. DPF Principles. Notably, we affirm our commitment in three key areas: (1) referral prioritization and investigations; (2) seeking and monitoring orders; and (3) enforcement cooperation with EU data protection authorities (“DPAs”).\n\nI. Introduction\n\na. FTC Privacy Enforcement and Policy Work\n\nThe FTC has broad civil enforcement authority to promote consumer protection and competition in the commercial sphere. As part of its consumer protection mandate, the FTC enforces a wide range of laws to protect the privacy and security of consumers and their data. The primary law enforced by the FTC, the FTC Act, prohibits “unfair” or “deceptive” acts or practices in or affecting commerce. The FTC also enforces targeted statutes that protect information relating to health, credit, and other financial matters, as well as children’s online information, and has issued regulations implementing each of these statutes.\n\nThe FTC has also recently pursued numerous initiatives to strengthen our privacy work. In August of 2022 the FTC announced it is considering rules to crack down on harmful commercial surveillance and lax data security. The goal of the project is to build a robust public record to inform whether the FTC should issue rules to address commercial surveillance and data security practices, and what those rules should potentially look like. We have welcomed comments from EU stakeholders on this and other initiatives.\n\nOur “PrivacyCon” conferences continue to gather leading researchers to discuss the latest research and trends related to consumer privacy and data security. We also have increased our agency’s ability to keep pace with the technology developments at the center of much of our privacy work, building a growing team of technologists and interdisciplinary researchers. We also, as you know, announced a joint dialogue with you and your colleagues at the European Commission, which includes addressing such privacy-related topics as dark patterns and business models characterized by pervasive data collection. We also recently issued a report to Congress warning about harms associated with using artificial intelligence (“AI”) to address online harms identified by Congress. This report raised concerns regarding inaccuracy, bias, discrimination, and commercial surveillance creep.\n\nb. U.S. Legal Protections Benefitting EU Consumers\n\nThe EU-U.S. DPF operates in the context of the larger U.S. privacy landscape, which also protects EU consumers in a number of ways. The FTC Act’s prohibition on unfair or deceptive acts or practices is not limited to protecting U.S. consumers from U.S. companies, as it includes those practices that (1) cause or are likely to cause reasonably foreseeable injury in the United States, or (2) involve material conduct in the United States. Further, the FTC can use all remedies that are available to protect domestic consumers when protecting foreign consumers.\n\nThe FTC also enforces other targeted laws whose protections extend to non-U.S. consumers, such as the Children’s Online Privacy Protection Act (“COPPA”). Among other things, COPPA requires that operators of child-directed websites and online services, or general audience sites that knowingly collect personal information from children under the age of 13, provide parental notice and obtain verifiable parental consent. U.S.-based websites and services that are subject to COPPA and collect personal information from foreign children are required to comply with COPPA. Foreign-based websites and online services must also comply with COPPA if they are directed to children in the United States, or if they knowingly collect personal information from children in the United States. Moreover, in addition to the U.S. federal laws enforced by the FTC, other federal and state consumer protection, data breach, and privacy laws may provide additional benefits to EU consumers.\n\nc. FTC Enforcement Activity\n\nThe FTC brought cases under both the U.S.-EU Safe Harbor and EU-U.S. Privacy Shield frameworks and continued to enforce the EU-U.S. Privacy Shield even after the CJEU invalidation of the adequacy decision underlying the EU-U.S. Privacy Shield Framework. Several of the FTC’s recent complaints have included counts alleging that firms violated EU-U.S. Privacy Shield provisions, including in proceedings against Twitter, CafePress, and Flo. In the enforcement action against Twitter, the FTC secured $150 million from Twitter for its violation of an earlier FTC order with practices affecting more than 140 million customers, including violating EU-U.S. Privacy Shield Principle 5 (Data Integrity and Purpose Limitation). Further, the agency’s order requires that Twitter allow users to employ secure multi-factor authentication methods that do not require users to provide their telephone numbers.\n\nIn CafePress, the FTC alleged that the company failed to secure consumers’ sensitive information, covered up a major data breach, and violated EU-U.S. Privacy Shield Principles 2 (Choice), 4 (Security), and 6 (Access). The FTC’s order requires the company to replace inadequate authentication measures with multifactor authentication, substantively limit the amount of data it collects and retains, encrypt Social Security numbers, and have a third party assess its information security programs and provide the FTC with a copy that can be publicized.\n\nIn Flo, the FTC alleged that the fertility-tracking app disclosed user health information to third-party data analytics providers after commitments to keep such information private. The FTC complaint specifically notes the company’s interactions with EU consumers and that Flo violated EU-U.S. Privacy Shield Principles 1 (Notice), 2 (Choice), 3 (Accountability for Onward Transfer), and 5 (Data Integrity and Purpose Limitation). Among other things, the agency’s order requires Flo to notify affected users about the disclosure of their personal information and to instruct any third party that received users’ health information to destroy that data. Importantly, FTC orders protect all consumers worldwide who interact with a U.S. business, not just those consumers who have lodged complaints.\n\nMany past U.S.-EU Safe Harbor and EU-U.S. Privacy Shield enforcement cases involved organizations that completed an initial self-certification through the Department of Commerce, but failed to maintain their annual self-certification while they continued to represent themselves as current participants. Other cases involved false claims of participation by organizations that never completed an initial self-certification through the Department of Commerce. Going forward, we expect to focus our proactive enforcement efforts on the types of substantive violations of the EU-U.S. DPF Principles alleged in cases such as Twitter, CafePress, and Flo. Meanwhile, the Department of Commerce will administer and supervise the self-certification process, maintain the authoritative list of EU-U.S. DPF participants, and address other program participation claim issues. Importantly, organizations claiming EU-U.S. DPF participation may be subject to substantive enforcement of the EU-U.S. DPF Principles even if they fail to make or maintain their self-certification through the Department of Commerce.\n\nII. Referral Prioritization and Investigations\n\nAs we did under the U.S.-EU Safe Harbor Framework and the EU-U.S. Privacy Shield Framework, the FTC commits to give priority consideration to EU-U.S. DPF Principles referrals from the Department of Commerce and EU Member States. We will also prioritize consideration of referrals for non-compliance with the EU-U.S. DPF Principles from privacy self-regulatory organizations and other independent dispute resolution bodies.\n\nTo facilitate referrals under the EU-U.S. DPF from EU Member States, the FTC has created a standardized referral process and has provided guidance to EU Member States on the type of information that would best assist the FTC in its inquiry into a referral. As part of this effort, the FTC has designated an agency point of contact for EU Member State referrals. It is most useful when the referring authority has conducted a preliminary inquiry into the alleged violation and can cooperate with the FTC in an investigation.\n\nUpon receipt of such a referral from the Department of Commerce, an EU Member State, or self-regulatory organization or other independent dispute resolution bodies the FTC can take a range of actions to address the issues raised. For example, we may review the organization’s privacy policies, obtain further information directly from the organization or from third parties, follow up with the referring entity, assess whether there is a pattern of violations or significant number of consumers affected, determine whether the referral implicates issues within the purview of the Department of Commerce, assess whether additional efforts to put market participants on notice would be helpful, and, as appropriate, initiate an enforcement proceeding.\n\nIn addition to prioritizing EU-U.S. DPF Principles referrals from the Department of Commerce, EU Member States, and privacy self-regulatory organizations or other independent dispute resolution bodies, the FTC will continue to investigate significant EU-U.S. DPF Principles violations on its own initiative where appropriate, using a range of tools. As part of the FTC’s program of investigating privacy and security issues involving commercial organizations, the agency has routinely examined whether the entity at issue was making EU-U.S. Privacy Shield representations. If the entity made such representations and the investigation revealed apparent violations of the EU-U.S. Privacy Shield Principles, the FTC included allegations of EU-U.S. Privacy Shield violations in its enforcement actions. We will continue this proactive approach, now with respect to the EU-U.S. DPF Principles.\n\nIII. Seeking and Monitoring Orders\n\nThe FTC also affirms its commitment to seek and monitor enforcement orders to ensure compliance with the EU-U.S. DPF Principles. We will require compliance with the EU-U.S. DPF Principles through a variety of appropriate injunctive provisions in future FTC EU-U.S. DPF Principles orders. Violations of the FTC’s administrative orders can lead to civil penalties of up to $50,120 per violation, or $50,120 per day for a continuing violation, which, in the case of practices affecting many consumers, can amount to millions of dollars. Each consent order also has reporting and compliance provisions. The entities under order must retain documents demonstrating their compliance for a specified number of years. The orders must also be disseminated to employees responsible for ensuring order compliance.\n\nThe FTC systematically monitors compliance with existing EU-U.S. Privacy Shield Principles orders, as it does with all of its orders, and brings actions to enforce them when necessary. Importantly, FTC orders will continue to protect all consumers worldwide who interact with a business, not just those consumers who have lodged complaints. Finally, the FTC will maintain an online list of companies subject to orders obtained in connection with enforcement of the EU-U.S. DPF Principles.\n\nIV. Enforcement Cooperation with EU DPAs\n\nThe FTC recognizes the important role that EU DPAs can play with respect to EU-U.S. DPF Principles compliance and encourages increased consultation and enforcement cooperation. Indeed, a coordinated approach to the challenges posed by current digital market developments, and data-intensive business models, is increasingly critical. The FTC will exchange information on referrals with referring enforcement authorities, including the status of referrals, subject to confidentiality laws and restrictions. To the extent feasible given the number and type of referrals received, the information provided will include an evaluation of the referred matters, including a description of significant issues raised and any action taken to address law violations within the jurisdiction of the FTC. The FTC will also provide feedback to the referring authority on the types of referrals received in order to increase the effectiveness of efforts to address unlawful conduct. If a referring enforcement authority seeks information about the status of a particular referral for purposes of pursuing its own enforcement proceeding, the FTC will respond, taking into account the number of referrals under consideration and subject to confidentiality and other legal requirements.\n\nThe FTC will also work closely with EU DPAs to provide enforcement assistance. In appropriate cases, this could include information sharing and investigative assistance pursuant to the U.S. SAFE WEB Act, which authorizes FTC assistance to foreign law enforcement agencies when the foreign agency is enforcing laws prohibiting practices that are substantially similar to those prohibited by laws the FTC enforces. As part of this assistance, the FTC can share information obtained in connection with an FTC investigation, issue compulsory process on behalf of the EU DPA conducting its own investigation, and seek oral testimony from witnesses or defendants in connection with the DPA’s enforcement proceeding, subject to the requirements of the U.S. SAFE WEB Act. The FTC regularly uses this authority to assist other authorities around the world in privacy and consumer protection cases.\n\nIn addition to any consultation with referring EU DPAs on case-specific matters, the FTC will participate in periodic meetings with designated representatives of the European Data Protection Board (“EDPB”) to discuss in general terms how to improve enforcement cooperation. The FTC will also participate, along with the Department of Commerce, the European Commission, and EDPB representatives, in the periodic review of EU-U.S. DPF to discuss its implementation. The FTC also encourages the development of tools that will enhance enforcement cooperation with EU DPAs, as well as other privacy enforcement authorities around the world. The FTC is pleased to affirm its commitment to enforcing the commercial sector aspects of the EU-U.S. DPF. We see our partnership with EU colleagues as a critical part of providing privacy protection for both our citizens and yours.\n\nSincerely,\n\n![Formula printed as an image in the official text — Annex IV](../../.gitbook/assets/gdpr-l2-32023D1795-image-4.jpg)\n\nLina M. KHAN\n\nChair, Federal Trade Commission\n\nAppendix A\n\nPrivacy Shield and Safe Harbor Enforcement\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Docket/FTC File No.CaseLink
1

FTC File No. 2023062

Case No. 3:22-cv-03070 (N.D. Cal.)

US v. Twitter, Inc.Twitter
2FTC File No. 192 3209In the Matter of Residual Pumpkin Entity, LLC, formerly d/b/a CafePress, and PlanetArt, LLC, d/b/a CafePressCafePress
3

FTC File No. 192 3133

Docket No. C-4747

In the Matter of Flo Health, Inc.Flo Health
4

FTC File No. 192 3050

Docket No. C-4723

In the Matter of Ortho-Clinical Diagnostics, Inc.Ortho-Clinical
5

FTC File No. 192 3092

Docket No. C-4709

In the Matter of T&M Protection, LLCT&M Protection
6

FTC File No. 192 3084

Docket No. C-4704

In the Matter of TDARX, Inc.TDARX
7

FTC File No. 192 3093

Docket No. C-4706

In the Matter of Global Data Vault, LLCGlobal Data
8

FTC File No. 192 3078

Docket No. C-4703

In the Matter of Incentive Services, Inc.Incentive Services
9

FTC File No. 192 3090

Docket No. C-4705

In the Matter of Click Labs, Inc.Click Labs
10

FTC File No. 182 3192

Docket No. C-4697

In the Matter of Medable, Inc.Medable
11

FTC File No. 182 3189

Docket No. 9386

In the Matter of NTT Global Data Centers Americas, Inc., as successor in interest to RagingWire Data Centers, Inc.RagingWire
12

FTC File No. 182 3196

Docket No. C-4702

In the Matter of Thru, Inc.Thru
13

FTC File No. 182 3188

Docket No. C-4698

In the Matter of DCR Workforce, Inc.DCR Workforce
14

FTC File No. 182 3194

Docket No. C-4700

In the Matter of LotaData, Inc.LotaData
15

FTC File No. 182 3195

Docket No. C-4701

In the Matter of EmpiriStat, Inc.EmpiriStat
16

FTC File No. 182 3193

Docket No. C-4699

In the Matter of 214 Technologies, Inc., also d/b/a Trueface.aiTrueface.ai
17

FTC File No. 182 3107

Docket No. 9383

In the Matter of Cambridge Analytica, LLCCambridge Analytica
18

FTC File No. 182 3152

Docket No. C-4685

In the Matter of SecureTest, Inc.SecurTest
19

FTC File No. 182 3144

Docket No. C-4664

In the Matter of VenPath, Inc.VenPath
20

FTC File No. 182 3154

Docket No. C-4666

In the Matter of SmartStart Employment Screening, Inc.SmartStart
21

FTC File No. 182 3143

Docket No. C-4663

In the Matter of mResourceLLC, d/b/a Loop Works LLCmResource
22

FTC File No. 182 3150

Docket No. C-4665

In the Matter of Idmission LLCIDmission
23

FTC File No. 182 3100

Docket No. C-4659

In the Matter of ReadyTech CorporationReadyTech
24

FTC File No. 172 3173

Docket No. C-4630

In the Matter of Decusoft, LLCDecusoft
25

FTC File No. 172 3171

Docket No. C-4628

In the Matter of Tru Communication, Inc.Tru
26

FTC File No. 172 3172

Docket No. C-4629

In the Matter of Md7, LLCMd7
30

FTC File No. 152 3198

Docket No. C-4543

In the Matter of Jhayrmaine Daniels (d/b/a California Skate-Line)Jhayrmaine Daniels
31

FTC File No. 152 3190

Docket No. C-4545

In the Matter of Dale Jarrett Racing Adventure, Inc.Dale Jarrett
32

FTC File No. 152 3141

Docket No. C-4540

In the Matter of Golf Connect, LLCGolf Connect
33

FTC File No. 152 3202

Docket No. C-4546

In the Matter of Inbox Group, LLCInbox Group
34

File No. 152 3187

Docket No. C-4542

In the Matter of IOActive, Inc.IOActive
35

FTC File No. 152 3140

Docket No. C-4549

In the Matter of Jubilant Clinsys, Inc.Jubilant
36

FTC File No. 152 3199

Docket No. C-4547

In the Matter of Just Bagels Manufacturing, Inc.Just Bagels
37

FTC File No. 152 3138

Docket No. C-4548

In the Matter of NAICS Association, LLCNAICS
38

FTC File No. 152 3201

Docket No. C-4544

In the Matter of One Industries Corp.One Industries
39

FTC File No. 152 3137

Docket No. C-4550

In the Matter of Pinger, Inc.Pinger
40

FTC File No. 152 3193

Docket No. C-4552

In the Matter of SteriMed Medical Waste SolutionsSteriMed
41

FTC File No. 152 3184

Docket No. C-4541

In the Matter of Contract Logix, LLCContract Logix
42

FTC File No. 152 3185

Docket No. C-4551

In the Matter of Forensics Consulting Solutions, LLCForensics Consulting
43

FTC File No. 152 3051

Docket No. C-4526

In the Matter of American Int'l Mailing, Inc.AIM
44

FTC File No. 152 3015

Docket No. C-4525

In the Matter of TES Franchising, LLCTES
45

FTC File No. 142 3036

Docket No. C-4459

In the Matter of American Apparel, Inc.American Apparel
46

FTC File No. 142 3026

Docket No. C-4469

In the Matter of Fantage.com, Inc.Fantage
47

FTC File No. 142 3017

Docket No. C-4461

In the Matter of Apperian, Inc.Apperian
48

FTC File No. 142 3018

Docket No. C-4462

In the Matter of Atlanta Falcons Football Club, LLCAtlanta Falcons
49

FTC File No. 142 3019

Docket No. C-4463

In the Matter of Baker Tilly Virchow Krause, LLPBaker Tilly
50

FTC File No. 142 3020

Docket No. C-4464

In the Matter of BitTorrent, Inc.BitTorrent
51

FTC File No. 142 3022

Docket No. C-4465

In the Matter of Charles River Laboratories, Int'lCharles River
52

FTC File No. 142 3023

Docket No. C-4466

In the Matter of DataMotion, Inc.DataMotion
53

FTC File No. 142 3024

Docket No. C-4467

In the Matter of DDC Laboratories, Inc., d/b/a DNA Diagnostics CenterDDC
54

FTC File No. 142 3028

Docket No. C-4470

In the Matter of Level 3 Communications, LLCLevel 3
55

FTC File No. 142 3025

Docket No. C-4468

In the Matter of PDB Sports, Ltd., d/b/a the Denver Broncos Football Club, LLPBroncos
56

FTC File No. 142 3030

Docket No. C-4471

In the Matter of Reynolds Consumer Products, Inc.Reynolds
57

FTC File No. 142 3031

Docket No. C-4472

In the Matter of Receivable Management Services CorporationReceivable Mgmt
58

FTC File No. 142 3032

Docket No. C-4473

In the Matter of Tennessee Football, Inc.Tennessee Football
59

FTC File No. 102 3058

Docket No. C-4369

In the Matter of Myspace LLCMyspace
60

FTC File No. 092 3184

Docket No. C-4365

In the Matter of Facebook, Inc.Facebook
61

FTC File No. 092 3081

Civil Action No. 09-CV-5276 (C.D. Cal.)

FTC v. Javian Karnani, and Balls of Kryptonite, LLC, d/b/a Bite Size Deals, LLC, and Best Priced Brands, LLCBalls of Kryptonite
62

FTC File No. 102 3136

Docket No. C-4336

In the Matter of Google, Inc.Google
63

FTC File No. 092 3137

Docket No. C-4282

In the Matter of World Innovators, Inc.World Innovators
64

FTC File No. 092 3141

Docket No. C-4271

In the Matter of Progressive Gaitways LLCProgressive Gaitways
65

FTC File No. 092 3139

Docket No. C-4270

In the Matter of Onyx Graphics, Inc.Onyx Graphics
66

FTC File No. 092 3138

Docket No. C-4269

In the Matter of ExpatEdge Partners, LLCExpatEdge
67

FTC File No. 092 3140

Docket No. C-4281

In the Matter of Directors Desk LLCDirectors Desk
68

FTC File No. 092 3142

Docket No. C-4272

In the Matter of Collectify LLCCollectify
\n\n\n","marks":[],"text_hash":"468828614f0ed9ba2e9943373b17edd75601fcb2edb7387cff54255312a05dfd","revision":1}}