Although it is a close call, the decision of the Court of Justice of the European Union (CJEU) in Schrems v. Data Protection Commissioner may turn out to be the most important consequence of the Snowden revelations. The CJEU invoked fears of NSA surveillance to strike down the safe harbor agreement that makes it easy for American companies to transfer personal information of Europeans to the United States.
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“I could tell you, but then I’d have to kill you” best explains why it is difficult to provide meaningful redress for targets of intelligence surveillance. How can anyone challenge surveillance programs when there is no way to know who is a target – and we would very much like to keep it that way?
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.