UE-US Data Privacy Framework : quelles incidences pour votre conformité ?
The Data Privacy Framework (DPF), adopted in July 2023, is the third attempt to secure data transfers between Europe and the United States. It establishes a level of protection deemed "substantially equivalent" through new redress mechanisms like the DPRC. However, this adequacy only applies to certified organizations and remains vulnerable to the US Cloud Act and future legal challenges from Max Schrems. To ensure lasting compliance, encryption and Standard Contractual Clauses (SCCs) remain the strongest technical and legal protections.
Imagine that Europe and the United States are trying to build a transatlantic bridge to secure the flow of our data. Twice already, the structure has collapsed under the weight of European legal requirements. The EU-US Data Privacy Framework (DPF), adopted in July 2023, is the third attempt at connection. However, this bridge is not a public good : it is a private lane reserved for certified actors, whose foundations remain subject to persistent geopolitical instability.
What is the "substantially equivalent" protection of the DPF ?
Since the invalidation of the previous agreement (Privacy Shield) in 2020 by the Court of justice of the European Union, companies have navigated in total legal uncertainty. The earthquake reached its peak in 2022, when the French supervisory authority (CNIL) issued formal notices to several organizations, judging the use of Google Analytics incompatible with the GDPR.
On July 10, 2023, the European Commission published a new adequacy decision. According to the text, the United States of America "ensures a level of protection substantially equivalent to that guaranteed within the Union". This term, "substantially", means that while American laws differ from ours, they now offer redress guarantees, notably via a special court, deemed sufficient by Brussels.
Major point of vigilance : the DPF is not a blank check for the entire US territory. It only benefits organizations listed on the Data Privacy Framework list.
Patriot Act vs GDPR : a clash of two legal cultures
Why do these agreements always end up being contested ? Because they attempt to reconcile two opposing philosophies.
- The European vision (GDPR) : data protection is a fundamental right. Data belongs to the individual, and the state must protect it
- The American vision (Patriot Act & FISA) : national security is the absolute priority. The Patriot Act and FISA allow intelligence agencies to access data massively to prevent threats. For Washington, data is a defense tool
The Cloud Act and the limits of digital sovereignty
The sovereignty conflict is total. The real problem is the Cloud Act. For an American judge, it does not matter if your servers are in Paris or Dublin : if the logo on the invoice is American, the data belongs to them. It is a brutal clash of sovereignty. You think you are safe because your files are in France ? If your provider is US-based, you are technically "trapped" between two legislative fires.
Technology to the rescue of law : the importance of encryption
Faced with this American intrusion power, the DPF attempts to install legal firewalls. For the first time, the United States accepts that its surveillance be framed by the principles of "necessity and proportionality". Better yet, they created the Data Protection Review Court (DPRC), a tribunal supposed to allow Europeans to contest abusive access to their data.
However, as law is a moving target, the most concrete security for a company is not found in texts, but in technology. The only true protection, which does not depend on a judge, is technology. Encryption is your life insurance. If you encrypt your data within the EU and keep the keys under your own control, the Cloud Act becomes an empty shell. Even if the provider is forced to "hand over" the servers, authorities will only recover a pile of unreadable digital trash. True sovereignty is there : in the technical control of your own keys.
Threats to the DPF : the Trump effect and Max Schrems’ challenges
In this early part of 2026, the sustainability of the DPF has entered a zone of high turbulence. The agreement is threatened by two opposing forces :
- The fragility of American executive orders : the agreement relies on President Biden's Executive Order 14086. If the Trump administration decides that these guarantees offered to Europeans harm US interests, this order can be revoked with a stroke of a pen, leading to the immediate collapse of the transatlantic bridge
- The fight of Max Schrems : the Austrian activist, who already took down the two previous agreements (Safe Harbor and Privacy Shield), has already filed appeals. He believes that the DPF is merely a disguised "Privacy Shield 2.0". If the Court of justice of the EU agrees with him again, we will instantly return to a legal vacuum
How to secure your transatlantic data flows ?
The DPF is a facilitation tool, but it remains precarious. For an organization, basing its compliance on this single pillar means accepting that its legal security depends on the next American elections or Max Schrems' next complaint.
Expert advice : use the DPF as a surface protection to simplify your daily operations, but maintain Standard Contractual Clauses (SCCs) as a supporting structure and generalize encryption. This is the only method guaranteeing that your data flows will not be interrupted at the next legal thunderclap.
FAQ - EU-US data transfers
How to check my provider ?
Consult the official DPF list. If they are not listed, sign SCCs without delay
Does hosting in France protect from the Patriot Act ?
Alone, no. If the provider is American, they remain subject to the Cloud Act. Only encryption where you keep the key offers real protection
Who is Max Schrems ?
He is the lawyer who had the two previous EU-US agreements annulled. His permanent action forces states to raise the level of protection, but also creates chronic instability for companies
