E.U.-U.S. data flow deal possible? Third time won’t be the charm without U.S. surveillance reform

Brussels, BE – Today, European Commission President Ursula von der Leyen is meeting with U.S. President Joe Biden. The two leaders seek E.U.-U.S. cooperation on digital trade and technology, including transatlantic data flows. Since July 2020, both sides have been negotiating a new data transfer deal after the E.U. Court of Justice invalidated the previous mechanism, the Privacy Shield.

The E.U. Court struck down the Privacy Shield because U.S. authorities’ data access and surveillance practices violate EU rights to data protection, privacy, and an effective remedy. Its predecessor, the E.U.-U.S. Safe Harbour, met the same fate in 2015 for the same reasons. Both cases, Schrems I and Schrems II, were brought to the E.U. Court by digital rights activist Max Schrems.

“It’s promising to see leaders engaging on data flows. Yet, finding a sustainable solution to the E.U.-U.S. data transfers challenge will require more than diplomacy,” said Estelle Massé, EU Policy Manager at Access Now. “To avoid a Schrems III decision, the U.S. must reform its surveillance laws to comply with the Court’s decision. The E.U. has spent years developing substantial, universal rights that should not stop at the borders.”

“America is ‘back,’ but hopefully not with more of the same tired half-measures that will not satisfy the E.U.,” said Eric Null, U.S. Policy Manager at Access Now. “U.S. surveillance law is in dire need of reform to address the issues in Schrems II. Passing strong federal privacy legislation would also go a long way toward solving E.U.-U.S. privacy issues and would avoid complex negotiations over ‘adequacy.’ Let’s get them both done and fix this Sisyphean problem once-and-for-all.”

In October 2020, Access Now and the ACLU wrote to the European Commission highlighting the list of reforms needed in the U.S. They include the following:

  • Ending bulk, generalized data collection conducted under Executive Order 12333;
  • Narrowing the categories of persons who may be targeted using surveillance under Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333;
  • Ensuring that individuals impacted by U.S. surveillance are able to challenge improper surveillance in U.S. courts; and
  • Providing for a mechanism to ensure that non-U.S. persons have enforceable rights.