We are rapidly approaching the point where Congress must decide the future of Section 702 of FISA, the authority for the PRISM and Upstream warrantless surveillance programs that expires at the end of this year. Unfortunately, as was made apparent during last week’s Senate Intelligence Committee hearing, so far much of the defense of Section 702 has centered on the surface-level rationale that Section 702 is too valuable to allow to sunset.
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For years, European officials have been asking for the United States to make available to citizens of the European Union some form of redress for privacy harms. To address this concern, one idea has been to amend the Privacy Act to allow foreign citizens the right to challenge how the US government handles their data. Officials in the US and Europe share an interest in pretending this proposal would do something for EU citizens who fear surveillance by the NSA. We should drop the pretense: the Privacy Act does nothing to provide meaningful redress for NSA targets.
In my last post, I argued that surveillance reform is the only way to ensure continued data flows between the US and the European Union. In this post, I will begin to explore whether there is a practical way to amend US surveillance law that might satisfy the concerns expressed by the Court of Justice of the European Union (CJEU) in Schrems v. Data Protection Commissioner.
In my last post, I said that the European Court of Justice decision in Maximillian Schrems v. Data Protection Commission ignores some inconvenient truths. US frustrations with European double standards on surveillance are understandable. They are also beside the point. The US must reform surveillance law – specifically, Section 702 of FISA – if it wants to restore safe harbor.