Is the New Post-Safe Harbor Data Privacy Law a Silver Bullet or a First Step?

House Judiciary Committee Chairman Rep. Robert Goodlatte, R-Va.

House Judiciary Committee Chairman Rep. Robert Goodlatte, R-Va. Jacquelyn Martin/AP

The Judicial Redress Act is a solid first step, but Congress and the Obama administration cannot stop there.

Bryan Cunningham is an information security, privacy, and data protection lawyer, and a senior adviser of The Chertoff Group, a security and risk management advisory firm. Formerly, he was a U.S. civil servant, working for the CIA and the Justice Department and serving as deputy legal adviser to National Security Adviser Condoleezza Rice.

On Feb. 24, President Obama signed into law the Judicial Redress Act. This new law allows citizens of certain European countries to sue the United States for improper disclosure of personal information, including in the context of government and law enforcement activities, just as the current Privacy Act permits U.S. citizens to do. The European justice commissioner called this law "a historic achievement in our efforts to restore trust in transatlantic data flows." 

Whatever the legal merits of the JRA, this piece of legislation has taken on international economic and policy implications far beyond any actual rights it may provide. According to a primary sponsor of the JRA, Rep. Bob Goodlatte, its principal purpose is “to reestablish the United States’ credibility with the European Union following highly publicized leaks of classified information . . . in recent years.”

As a result of leaked disclosures in 2013 relating to U.S. government electronic surveillance activities, U.S.-EU relations with regard to cross-border data sharing of citizen information have been strained, leading to negative consequences for US business, European consumers, and governments on both sides of the Atlantic.  

This culminated in late 2015 when the European Court of Justice nullified the so-called Safe Harbor agreement between the United States and the European Union. Safe Harbor had enabled more than 4,000 US businesses to transfer EU personal data lawfully to the United States, enabling cross-Atlantic commerce.

The nullification of Safe Harbor, and worrisome statements by Europe’s data protection regulators, have left U.S. businesses in limbo, and at substantial legal risk, if they want to continue doing business in Europe. In fact, the Hamburg, Germany data protection authority recently announced it will fine three companies for continuing to rely on Safe Harbor for data transfers after the ECJ decision.

How does the Judicial Redress Act fit in? In striking down Safe Harbor, the ECJ found in it at least two fatal flaws:

First, it found privacy protections under Safe Harbor inadequate because they lacked an “independent oversight mechanism that is both effective and impartial” and that “effective remedies need to be available” for European citizens to seek judicial relief if they feel their privacy is violated by the U.S. government. The JRA is intended to provide Europeans with similar rights to seek relief, at least under one U.S. law, as Americans enjoy.

Second, the ECJ separately invalidated the Safe Harbor Agreement based on its conclusion that U.S. government intelligence surveillance and data collection activities were inconsistent with EU Privacy law.

In fact, the JRA is only one – though a vital – component of a package of reforms negotiated between the United States and the EU following the ECJ’s decision. To restore the lawful commercial transfer of Europeans’ data to the United States, EU political leaders reached an agreement with the U.S. called “privacy shield.”

The agreement, released publicly Feb. 29, is intended to replace Safe Harbor and, at least partially, satisfy the ECJ’s concerns. According to the U.S. Commerce Department, charged along with the Federal Trade Commission, with implementing “privacy shield,” the agreement provides stronger protections for U.S.-EU data transfers, including: enhancing cooperation between EU and U.S. data protection authorities; requiring arbitration by U.S. companies with EU individuals on privacy issues; and mandating new contractual protections for U.S company transfers of EU data to third parties.

The other key element of this overall deal is the so-called Umbrella Agreement between the U.S. and EU, regarding how law enforcement agencies on both sides of the Atlantic share data. The agreement intends to provide additional use limitations and protections for such information sharing. EU authorities have stated that this Umbrella Agreement would not be finalized until the JRA was signed.

But even the signing of this agreement won’t be the end of the story, because it is unclear whether European courts and, equally important, the Data Protection Authorities in each country, will determine that this combination of measures satisfies the privacy concerns that led the ECJ to invalidate Safe Harbor. Further complicating the issue is the fact that the actual language of the Umbrella Agreement has not been publicly released. 

While JRA is a solid first step, our Congress and the Obama administration cannot stop there. This large and complex set of issues will not be resolved without a number of other actions, by our government and in Europe.

Congress should move ahead with legislation modernizing the exchange of evidence in criminal cases, an issue addressed by the Law Enforcement Access to Data Stored Abroad Act, and continue to work toward bilateral agreements with additional European allies to mitigate the legal risk facing U.S. companies because of current incompatibility between U.S and European privacy and data access laws.

Whether the JRA leads directly and quickly to overall solutions to these key data transfer issues or is only a first step on a longer road, it is a positive development.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.