Judicial Redress Act of 2015
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Safe Harbor Update: House Votes to Pass Judicial Redress Act

The Judicial Redress Act of 2015 (H.R. 1428) (Judicial Redress Act) is on its way to the U.S. Senate. On October 20th, the U.S. House of Representatives voted in favor of passage.

The Judicial Redress Act extends certain privacy rights under the Privacy Act of 1974 (Privacy Act) to citizens of the EU and other specified countries.

The preamble to the Judicial Redress Act states that:

The Judicial Redress Act provides citizens of covered foreign countries with the ability to bring suit in Federal district court for certain Privacy Act violations by the Federal Government related to the sharing of law enforcement information between the United States and a covered foreign government. Any such lawsuit is subject to the same terms and conditions that apply to U.S. citizens and lawful permanent residents who seek redress against the Federal Government under the Privacy Act. Under current law, only U.S. citizens and lawful permanent residents may bring claims against the Federal Government pursuant to the Privacy Act despite the fact that many countries provide U.S. citizens with the ability to seek redress in their courts when their privacy rights are violated. Enactment of this legislation is necessary in order to promote and maintain law enforcement cooperation and information sharing between foreign governments and the United States and to complete negotiations of the Data Protection and Privacy Agreement with the European Union.”

The House’s passage of the Judicial Redress Act is expected to help mitigate one of the key criticisms of U.S. privacy protection from EU regulators. As discussed in our blog posts from earlier this month, in the Court of Justice of the European Union (CJEU) decision invalidating the U.S.-EU Safe Harbor Program, the CJEU noted that EU residents lack an “administrative or judicial means of redress enabling, in particular, the data relating to them to be accessed and, as the case may be, rectified or erased.”  Once passed by the Senate (as is generally expected), the Judicial Redress Act will provide that means of redress.

Check back for updates on the Senate’s consideration of the Judicial Redress Act and the ongoing EU-US negotiations about a Safe Harbor Sequel.




Court of Justice of the European Union Says Safe Harbor Is No Longer Safe

Earlier today, the Court of Justice of the European Union (CJEU) announced its determination that the U.S.-EU Safe Harbor program is no longer a “safe” (i.e., legally valid) means for transferring personal data of EU residents from the European Union to the United States.

The CJEU determined that the European Commission’s 2000 decision (Safe Harbor Decision) validating the Safe Harbor program did not and “cannot eliminate or even reduce the powers” available to the data protection authority (DPA) of each EU member country. Specifically, the CJEU opinion states that a DPA can determine for itself whether the Safe Harbor program provides an “adequate” level of personal data protection (i.e., “a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union” as required by the EU Data Protection Directive (95/46/EC)).

The CJEU based its decision invalidating that Safe Harbor opinion in part on the determination that the U.S. government conducts “indiscriminate surveillance and interception carried out … on a large scale”.

The plaintiff in the case that gave rise to the CJEU opinion, Maximilian Schrems (see background below), issued his first public statement praising the CJEU for a decision that “clarifies that mass surveillance violates our fundamental rights.”

Schrems also made reference to the need for “reasonable legal redress,” referring to the U.S. Congress’ Judicial Redress Act of 2015. The Judicial Redress Act, which has bi-partisan support, would allow EU residents to bring civil actions in U.S. courts to address “unlawful disclosures of records maintained by an [U.S. government] agency.

Edward Snowden also hit the Twittersphere with “Congratulations, @MaxSchrems. You’ve changed the world for the better.”

Background

Today’s CJEU opinion invalidating the Safe Harbor program follows on the September 23, 2015, opinion from the advocate general (AG) to the CJEU in connection with Maximilian Schrems vs. Data Protection Commissioner.

In June 2013, Maximilian Schrems, an Austrian student, filed a complaint with the Irish DPA. Schrems’ complaint related to the transfer of his personal data collected through his use of Facebook. Schrems’ Facebook data was transferred by Facebook Ireland to Facebook USA under the Safe Harbor program. The core claim in Schrems’ complaint is that the Safe Harbor program did not adequately protect his personal data, because Facebook USA is subject to U.S. government surveillance under the PRISM program.

The Irish DPA rejected Schrems’ complaint because Facebook was certified under the Safe Harbor Program. Schrems appealed to the High Court of Ireland, arguing that the Irish (or any other country’s) DPA has a duty to protect EU citizens against privacy violations, like access to their personal data as part of U.S. government surveillance. Since Schrems’ appeal relates to EU law (not solely Irish law), the Irish High Court referred Schrems’ appeal [...]

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