Rapid appointment of US official to head Privacy Shield talks a signal of importance to administration

21 Jan 2021 12:00 am by Mike Swift

US White House

There were many sources of conflict between Europe and the US during the Trump administration, but a chronic problem was the plodding pace of appointments for the key transatlantic data-transfer system: the EU-US Privacy Shield.

In the first full day of the new administration of President Joe Biden, that doesn’t appear to be a problem. In a signal that settling the data-transfer crisis will be an early focus, the administration has already placed veteran privacy lawyer Christopher M. Hoff in the US Commerce Department role overseeing talks on a replacement to the nullified Shield.

Hoff, a Commerce Department veteran during the Obama administration and one of 16 people named in 2017 as arbitrators of Privacy Shield disputes, also managed the Safe Harbor agreement that preceded Privacy Shield. He began work yesterday, on the day Biden was inaugurated, as the deputy assistant secretary for services in the International Trade Administration, an arm of Commerce.

Hoff replaces James Sullivan, the political appointee who was the key US contact with Europe on data-transfer issues during the Trump administration. And while the US commerce secretary has yet to be confirmed and a number of senior posts at the ITA remain unfilled, the new administration has put in place a data-transfer official with a demonstrated track record of working with counterparts in Europe and elsewhere in the world on data-transfer issues.

That fact that Hoff is already in place at the dawn of a new administration is a significant departure from the preceding president. In contrast, the Trump administration didn't make appointments for more than a year to key posts such as the permanent “ombudsperson” to consider complaints about privacy violations by US intelligence agencies, instead appointing temporary officials to that role, causing friction with European Union officials that became obvious around the framework’s annual review.

At one point in 2018, EU Justice Commissioner Věra Jourová threatened to suspend the Privacy Shield unless the US fulfilled commitments, including the naming of a permanent ombudsperson, although she never followed through on the threat.

There was also a year-long delay under Trump in appointing the full five-commissioner complement to the US Federal Trade Commission, which enforced Privacy Shield violations. Under Biden, Commissioner Rebecca Kelly Slaughter was appointed today to be the acting chair of the FTC, as the new administration moves quickly to maintain the leadership focus at its regulatory agencies.

The EU and US are both under great pressure to negotiate a durable replacement to Privacy Shield, which was the legal basis for more than 5,300 companies to transfer personal data between Europe and the US before it was nullified by the European Court of Justice last year. Many US companies have concluded that strict conditions EU judges put on a second data-transfer mechanism, Standard Contractual Clauses, may leave them with no legal basis for transatlantic data transfers.

With Safe Harbor and Privacy Shield being overturned in succession by the EU’s top court, the two sides need to find a lasting solution to issues around redress powers for Europeans who say their privacy rights were violated through surveillance by US intelligence agencies.

Hoff will be intimately familiar with those problems from the start. Under Privacy Shield, his role as an arbitrator was to give Europeans with a privacy complaint against any US entity the ability to invoke binding arbitration to determine whether the entity violated its Privacy Shield obligations.

In private practice, Hoff also had a leadership role with the Internet of Things Committee of the American Bar Association Section of Science and Technology Law. Most recently, Hoff worked in the data privacy and cybersecurity practice of the law firm Squire Patton Boggs and was chief privacy officer for Huron Consulting Group.

Hoff’s appointment “is also a recognition that this is a complex and important portfolio that needs a seasoned professional to shepherd ideas forward so a more lasting solution can be achieved,” said Caitlin Fennessy, research director for the International Association of Privacy Professionals and a former veteran ITA official who worked with Hoff.

The Commerce Department declined to make Hoff available for an interview. But Fennessy said Hoff is a good match for the job.

“Chris is a people person, a relationship person and is really well-suited to this role, not only because of his expertise in this area, but because he will focus on developing those relationships,” she said. “He knows some of the folks in this space, but he also will concentrate, I think, on the diplomatic side of this and enjoy the opportunity to reinvigorate those discussions.”

Biden’s nominee for secretary of Commerce, Rhode Island Governor Gina Raimondo, will have her confirmation hearing before the US Senate's commerce committee on Tuesday.

Hoff is already well known to civil staffers within the ITA, however. As co-administrator of the US-EU and US-Swiss Safe Harbor frameworks during his first tour at the Commerce Department, Hoff also worked on Asia-Pacific Economic Cooperation Cross-Border Privacy Rules, the international data transfer framework for the Pacific Rim.

—With reporting by Matthew Newman in Brussels.

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