Senate Passes Judicial Redress Rights for Europeans, but Plays Hardball on Safe Harbor

WASHINGTON D.C. — Today, the Senate Judiciary Committee voted 19–1 to extend redress rights to certain European citizens so they can enforce their data protection rights in U.S. courts. The Judicial Redress Act, which passed the House by a voice vote in October, would allow the Attorney General to work with other federal agencies to determine countries whose citizens would be covered under the Privacy Act of 1974. Since that statute specifically exempts sensitive issues regarding law enforcement and national security, extending Privacy Act rights to citizens of selected countries poses no significant concerns.

The Senate version differs from the House-passed bill, as the Judiciary Committee voted unanimously to approve an amendment from Senator John Cornyn (R-TX) that would require the European countries covered by the bill to allow commercial data transfers with the U.S — essentially tying their redress rights to passage of a new Safe Harbor agreement. In addition, it included a provision stating that the bill can not impede U.S. national security interests.

“How data flows across the Atlantic is probably the single most critical question regarding the future of the Internet, so it shouldn’t be any surprise that both sides are playing hardball,” said Berin Szoka, President of TechFreedom. “Europeans quite understandably want to have the same basic right to get access to their information held by the U.S. government and, when justified, have that information deleted or corrected. Cornyn’s amendment means the ball is now in Europe’s court: if they blockade U.S. companies and law enforcement, not only will they not get those redress rights, but they’ll thwart sharing of critical data that law enforcement agencies need to combat terrorism.”

“The problem is that getting equal Privacy Act rights is a necessary, but not sufficient, condition for ensuring the continued flow of commercial data,” continued Szoka. “Lawyers are still trying to figure out exactly what the European Court of Justice’s Schrems decision means for a new Safe Harbor, and even the alternative legal mechanisms that enable data transfers. But it’s hard to see how the court will be satisfied without more fundamental changes to U.S. surveillance practices. Everything that’s been made public about the ongoing negotiations over a new Safe Harbor suggests the deal will focus heavily on making U.S. regulation of private companies stricter — which was not at all the issue in Schrems.”

“Without major reforms from Congress, a Safe Harbor 2.0 will fail in court,” concluded Szoka. “This may thus be merely a political contrivance to delay the inevitable battle over broad surveillance under Section 702 of the PATRIOT Act, due to Sunset in December 2017, and Executive Order 12333. Cornyn’s amendment does nothing to help address these issues, except that it gives the European Commission and European law enforcement a greater incentive to keep digital trade lanes open. The need for more fundamental reform remains as urgent as ever.”

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We can be reached for comment at media@techfreedom.org. See more of our work on Judicial Redress Act and Safe Harbor, especially:

• Episode #8 of the Tech Policy Podcast: Privacy Reform — or Digital Trade War?
• “Only Congressional Privacy Reforms Can Prevent EU Internet Blockade of US,” a statement from TechFreedom on the ECJ striking down Safe Harbor
• “Bipartisan Bill Can Help Avoid EU Internet Blockade,” a statement from TechFreedom

Originally published at techfreedom.org.