Brussels, BE – Earlier today the Council of the European Union and the United States signed the Umbrella Agreement, an EU-US framework that is aimed at protecting the privacy of personal data that is transferred overseas for law enforcement purposes. The agreement was completed in September of last year, with the condition that the US Congress would then pass the Judicial Redress Act. It has come under heavy fire from privacy experts and representatives of the European Parliament, who now have the final say on its fate.
The Umbrella Agreement is intended to guarantee people in the EU and the US privacy safeguards ranging from judicial redress to data security measures, as well as an assurance that the data transferred is protected with the most robust domestic data-protection frameworks. However, it fails to do so. Recently, the EU Parliament legal service conducted an in-depth review of the Umbrella Agreement and found that it doesn’t comply with EU law.
“Given its large number of shortcomings, the text should absolutely be brought back to the drawing board,” said Estelle Massé, EU Policy Analyst at Access Now. “The EU Commission has a worrying track record in negotiating international frameworks that breach EU law. To avoid yet another unfortunate setback, the EU Parliament should reject the Umbrella Agreement or seek the opinion of the EU Court on its validity.”
The lack of a redress mechanism for those protected under EU law has been a contentious element in the negotiations on the Umbrella Agreement, one that US decision-makers sought to address with the Judicial Redress Act. Passage of the Judicial Redress Act was a condition for the approval of the Umbrella Agreement. It allows the US Attorney General and the Secretary of State to designate countries where citizens can get some protections under the Privacy Act of 1974. However, this US law has so many exceptions that it’s fairly toothless, even for people in the US. While Access Now initially supported the Judicial Redress Act, we also took note that its application is limited and would not extend any protection at all to non-citizens residing in designated countries. Designated countries could also have their status revoked, making its protections unreliable.
However, even the small benefits of the Judicial Redress Act have now been undercut. Before the US Congress passed the bill in early 2016, the Senate inserted additional language into the bill. The version of the Judicial Redress Act that was signed into law not only fails to comply with the EU Charter of Fundamental Rights, it also undermines the ability of Europeans to call for the U.S. to protect their human rights in regard to government surveillance. Any country deemed to have “impede[d] the national security interests of the United States” would be ineligible for status.
“The Judicial Redress Act was always suspect. But with last-minute changes, the Senate demonstrated its inability to protect the rights of Europeans,” added Amie Stepanovich, US Policy Manager at Access Now. “This was not the redress the EU was looking for.”
For our in-depth analysis of the Umbrella Agreement, see:
EU Policy Analyst, Access Now
US Policy Manager, Access Now
Photo credit: Hartwig HKD