Peter Swire issued the following statement today following news of a revised Safe Harbor framework.
Today the European Union and United States announced a new framework for transatlantic data flows, called the EU-US Privacy Shield. This will update the EU-US Safe Harbor agreement, for which I was part of the negotiating team in 2000. At the invitation of European Union privacy officials, I testified in December 2015 about “US Surveillance Law, Safe Harbor, and Reforms Since 2013,” available here.
The US has made multiple and important reforms to its surveillance law since the Snowden stories began in 2013. Congress passed the USA-Freedom Act in 2015, which among other good measures banned bulk collection of telephone records. President Obama in 2014 issued Presidential Privacy Directive-28, announcing the principle that privacy and civil liberties protections should apply to Europeans and others outside of the US, where possible. We have updated US law while protecting our national security and other vital interests.
I was in Brussels last week while the Safe Harbor negotiations were underway, including a debate with Max Schrems, the Austria privacy activist who started the case that brought down the old Safe Harbor. (Audio available here.)
In my view, the surveillance reforms since 2013 were essential to bringing the Europeans on board. The Schrems litigation assumed there was “mass and indiscriminate surveillance” by the US. The US surveillance reforms gave our allies what they needed to conclude the deal.
The agreement announced today averts a trade war that threatened to cut off a vast array of data flows between Europe and the United States. Effective reforms and effective diplomacy have saved the day.
Alston & Bird Senior Counsel Peter Swire is the Huang Professor of Law and Ethics at the Georgia Institute of Technology Scheller College of Business, and Associate Director for Policy of the Georgia Tech Institute for Information Security and Privacy. In 2013, he served as one of five members of President Obama’s Review Group on Intelligence and Communications Technology.