End the Privacy Shield: Access Now urges the European Commission to suspend Privacy Shield due to changes in US policies

Brussels, BE – Today, Access Now sent a letter to Commissioner Vera Jourová and EU Parliament LIBE Chair Claude Moraes asking for the suspension of the EU-US data transfer arrangement known as Privacy Shield. The letter comes after recent developments in the United States that cast new doubt on the US government’s commitment to safeguarding the privacy and data protection rights of Europeans.

The Privacy Shield was designed to replace the Safe Harbour arrangement that the Court of Justice of the EU (CJEU) invalidated for failing to comply with EU law, and in particular the EU Charter of Fundamental Rights. While the Privacy Shield was flawed from the beginning, recent changes in US law and policy that undermine the universality of the right to privacy and expand US surveillance mandates require immediate action from the Commission.

“EU officials conceded the high level of privacy and data protection rights of Europeans when they adopted Privacy Shield. The Commission must react to the recent changes in US law and policies that put in doubt the validity of ‘written assurances’ which are the basis of the data transfer arrangement”, said Fanny Hidvegi, European Policy Manager at Access Now. “The EU should take a stand against government surveillance whether it’s coming from the US or EU member states, and ensure the application of the Charter for Fundamental Rights in this context to complement the jurisprudence of the European Court of Human Rights”.

The letter calls out several developments in the US since the Privacy Shield entered into force that undermine even the limited protections it afford. For example, before leaving office, the Obama administration made the regrettable decision to extend the access to information collected by US agencies pursuant to surveillance programs carried out under Executive Order 12333 (EO 12333). EO 12333 broadly and without remotely adequate oversight authorises essentially any surveillance that is not otherwise unlawful or unconstitutional under US law.

Actions taken by the Trump administration over the past two weeks, however, signal a new approach to privacy that should be the last nail in Privacy Shield’s coffin. For instance, only days after taking office, the Trump administration released an Executive Order on “Enhancing Public Safety in the Interior of the United States”. This Executive Order limits privacy protections to US persons only, except as provided for by law, indicating a disregard for Europeans’ capacity to access or correct data held on them by US government agencies.

This decision is at odds with the spirit of Obama’s Presidential Policy Directive (“PPD”) 28, which took the unprecedented but limited step of recognising the privacy “interests” of all people. PPD 28 has never been written into law and the current administration could unilaterally revoke it without notifying the public. President Trump has also nominated as the head to several key agencies individuals who have specifically lobbied to remove human rights protections from surveillance authorities.

“This administration has made it clear that it has little regard for the rights of many classes of people, including anyone who lives outside of the United States”, says Amie Stepanovich, US Policy Manager at Access Now. “As the operator of the largest and most well-funded surveillance apparatus in the world, the US owes a specific duty to respect human rights. President Obama had taken small steps in that direction, but this White House is not only moving to erase that progress, but to move us even further backward and subvert any semblance of international leadership this country once had”.

We urge the Commission to take immediate action to address the both long-standing and new issues with the Privacy Shield that undermine the privacy and data protection rights of users in Europe.

For our in-depth analysis of the Privacy Shield, see: