Regardless of ECJ Ruling on Safe Harbor, Government Surveillance Reform Called Necessary
At 4:30 a.m. EDT Tuesday, the European Court of Justice will issue its decision on whether the U.S.-EU safe harbor agreement should be rendered invalid. With the ruling coming so quickly after European Court of Justice Advocate General Yves Bot, citing concerns with U.S. government surveillance practices, declared the agreement invalid and recommended it be suspended (see 1509230001), some speculate the court will agree with Bot’s opinion and abolish the agreement. Others don’t think there will be any winners Tuesday and, regardless of how the court rules, they argue privacy reforms must be made. U.S. and EU consumer groups support having the agreement declared illegal and are going to issue a statement after the ruling encouraging the U.S. to enact a comprehensive privacy law that reflects the EU privacy framework.
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The U.S. intelligence community and State Department’s Mission to the EU have criticized Bot’s opinion, saying he mischaracterized U.S. intelligence programs (see 1509280037) and failed to consider reforms that have been made, such as passage of USA Freedom and current attempts to pass the Judicial Redress Act. Bot was wrong when he said the U.S. intelligence program Prism gives the U.S. government “unrestricted access to mass data stored on servers in the United States,” wrote Office of the Director of National Intelligence General Counsel Robert Litt in an op-ed for the Financial Times Monday, which was also posted on the ODNI blog. The Prism program, authorized under Section 702 of the Foreign Intelligence Surveillance Act, is “‘not based on the indiscriminate collection of information in bulk,’ as a report from the U.S. Privacy and Civil Liberties Oversight Board makes clear” and “does not give the U.S. ‘unrestricted access’ to data,” Litt said.
One concern Bot raised in his opinion was that the FTC, which oversees and verifies compliance with safe harbor principles under authority granted to the agency by Section 5 of the FTC Act, is limited in its authority to commercial disputes and doesn’t oversee U.S. intelligence agencies. The FTC and EU have been negotiating how to revise safe harbor. The FTC declined to comment.
The impact the ruling could have on EU-U.S. trade and commerce could be quite dramatic and is something the European Commission is “very, very concerned about,” said Center for Democracy & Technology European Affairs Director Jens-Henrik Jeppesen. After the court ruling in the case, EC First Vice President Frans Timmerman and EC Commissioner Věra Jourová will speak during an EC news conference and participate in a Q&A, according to the EC schedule. Jeppesen said he doesn’t remember a time when the commission has announced that officials would be speaking after the court rules on an issue. But he said in the past few years, the European courts have made some “dramatic decisions” on issues like the right to be forgotten and data retention.
Some 4,500 companies “exchange data across the pond” daily, meaning the ruling has big implications on trade, said Fisher & Phillips attorney Nick Beermann. Ruling the safe harbor agreement invalid could lead to a flood of privacy complaints, he said. Vendors will also be affected, he said. The Commerce Department’s International Trade Administration didn’t comment.
Chances the safe harbor agreement would be withdrawn increased substantially with Bot’s opinion and weak defense arguments made by the U.S. government, said London-based attorney Jonathan Armstrong of the firm Cordery. Armstrong said it appears the court ruled on the issue in about a week, but that may not be necessarily true. Bot’s opinion was due at the start of the summer but was delayed partly because it needed to be translated, Armstrong said. Rumor has it the court had access to a French version of Bot’s opinion before the opinion was publicly published, which could explain the quick turnaround, Armstrong said.
“Neither side will win tomorrow,” Armstrong said. He said he believes the court will try to reach a middle ground between Bot’s opinion and protecting safe harbor, but he said the U.S. hasn't argued much about the economic impact the decision would have on trans-Atlantic trade. Whether the court can or will take the economic impact into consideration is another issue, Armstrong said. Whatever happens Tuesday, there is a need to push for new privacy laws, he said.
“This is a wake-up call that surveillance reform” is at the heart of this case, Jeppesen said. This case isn’t about commercial data protection but about the U.S. and Europe not having made enough progress when it comes to government surveillance, he said. “USA Freedom was a good first step,” but more needs to be done, he said. There is a need in the U.S. to push for new uniform privacy laws, Armstrong said. A lack of a uniform general data breach, privacy law in the U.S. is relevant to his debate, he said. Another thing to consider is how the ruling would affect the U.S.-Switzerland safe harbor agreement, Armstrong said.
Beermann disagreed a lack of government surveillance reform was as big an issue as some privacy advocates made it out to be. There is reform happening and concerns about a lack of reform are “slightly misguided,” he said.
When the U.S. does intercept communications from ordinary people who are communicating with valid foreign intelligence targets, “strict procedures limit how long they can be retained and how they can be disseminated,” Litt wrote in his op-ed. “The U.S. legal framework for intelligence collection includes robust protection for privacy under multiple layers of oversight and a remarkable degree of transparency.”
Regardless of the outcome, negotiations will continue between the U.S. and EC on reforming privacy rights, said Fisher & Phillips’ Robert Fallah.