My friend Cam Kerry, in a recent Lawfare post expressed concern that actions of the Trump Administration are undermining the Privacy Shield, the important agreement between the United States and the European Union that permits transatlantic data flows. Kerry fears that “the damage the president and his administration have done to relationships with Europe and perceptions of the United States as a trusted partner” will make it hard to sustain the Privacy Shield.
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The recent Office of the Director of National Intelligence (ODNI) report on Russia’s efforts to “undermine public faith in the US democratic process” through “an influence campaign in 2016 aimed at the US presidential election” also warns that similar influence operations could be waged against US allies, including France (where I’m from) and Germany. Both countries are set to hold elections in 2017 that will be crucial to the future of the EU.
Digital commerce across the Atlantic is highly dependent on the free flow of data. And that, in turn, is dependent on the existence of roughly equivalent privacy protections on both sides of the Atlantic that provide legal, and practical, comfort to Europeans and Americans about the security and privacy of their personal information.
Yesterday, the EU’s highest court issued a major judgment that effectively invalidates a significant portion of the UK’s recently-passed Investigatory Powers Act (aka the “Snooper’s Charter”). The European Court of Justice (CJEU) judgment holds that “general and indiscriminate” data retention laws are inconsistent with the EU’s privacy directives.
Editor's Note: Data should drive decision-making – the real question is how much should it do so? As big data and data analytics expand, it is tempting to assume they can solve many of the problems foreign policy decision-making has long faced. Chris Meserole, a pre-doctoral fellow here at Brookings unpacks some of the issues involved with big data when it comes to foreign policy and argues that it can inform our strategic reasoning but can’t supplant it.
As the FBI diligently set about following every lead in the San Bernardino shooting case, did it ever stop and take a look at what marketing companies collect? I’m currently participating in a research group examining the implications of the data these companies hold and aggregate, and the potential value to law enforcement investigations immediately came to mind. Private data marketing companies would make even the Stasi blush at the detailed dossiers they now attempt to collect on every American.
Jennifer C. Daskal (Washington College of Law, American University) has a forthcoming paper in Yale Law Journal on the vexing question of territoriality and data (current draft is available on SSRN.com), "The Un-Territoriality of Data." This paper focuses on one important aspect of the "where" of electronic data given the nature of today's Internet technologies - the US Constitutional Fourth Amendment territoriality issues of search and seizure. Here is the SSRN abstract: