Henry Farrell and Abraham Newman in Foreign Affairs: "The Transatlantic Data War: Europe Fights Back Against the NSA"

Network member Abraham Newman (Georgetown) has published an article (with Henry Farrell of George Washington University) in Foreign Affairs entitled "The Transatlantic Data War: Europe Fights Back  Against the NSA". The first paragraphs are below and you may read the remainder here.

* * *

Last October, the European Court of Justice struck down the Safe Harbor Agreement, a 15-year-old transatlantic arrangement that permitted U.S. companies to transfer data, such as people’s web search histories or personnel records, outside of the EU. In invalidating the agreement, the ECJ found that the blurry relationship between private-sector data collection and national security in the United States violates the privacy rights of EU citizens whose data travel overseas. The decision leaves U.S. tech companies with extensive international operations on shaky legal ground.

Although some informed American observers anticipated the decision, most were caught flat-footed; some seemed downright bewildered. The vice president of the US Chamber of Commerce, Myron Brilliant, responded in shock that “it is particularly alarming that this long-standing agreement has been invalidated with no discussion of a transition period or guudence regarding how companies should comply with the law…” Critics of the decision, including Commerce Secretary Penny Pritzker, argue that it will devastate the transatlantic digital economy, costing U.S. firms billions of dollars. Without a new agreement, there is a significant risk that personal data will have to be quarantined within Europe, creating, as Alphabet Chairman Eric Schmidt warned in his response to the decision, “per-country-Internets”. If that occurred, he continued, it could risk destroying “one of the greatest achievements of humanity.” Critics charge that the EU is acting unilaterally to protect its businesses against foreign competition, damaging the open, democratic nature of the Internet.

But the main reason that U.S. companies and officials are flustered is that they are used to being the ones who make the rules. Over the past 70 years, the United States has built a global system in which trade, investment, and information move quickly and easily across borders. That openness has created an interdependent world in which the national rules and preferences of one country can shape the rules and preferences of others. The outsized power of the U.S. economy usually gives that role to the United States.

In the aftermath of the 9/11 attacks, the United States began to exploit interdependence, deliberately using its economic power as an instrument of national security. Despite advocating for free flows of capital, it has systematically used sanctions to oblige foreign banks and financial actors to isolate people, businesses, and states from the global financial system. Despite publicly promoting an open and secure Internet, it has privately undermined online communications and surreptitiously created vast international surveillance systems in cooperation with close allies including the United Kingdom. In short, the United States has leveraged the world’s reliance on its economy to influence and spy on foreigners.

This strategy is reaching its limits, and the Safe Harbor decision powerfully demonstrates that Washington needs to wake up to its costs… [continue reading here]

Peter Swire on the USA Freedom Act and European Concerns about NSA Surveillance

Network member Alasdair Young (Georgia Tech) has alerted us to the publication of the first Working Paper from Georgia Tech's Jean Monnet Center, entitled "The USA Freedom Act: A Partial Response to European Concerns about NSA Surveillance," and authored by privacy expert Peter Swire (Georgia Tech).  Alasdair's announcement is below; the full text is available here.

* * *

Georgia Tech’s Jean Monnet Center of Excellence is proud to announce the publication of its first working paper, written by Center member and Huang Professor of Law and Ethics at the Georgia Tech Scheller College of Business and Senior Counsel at Alston & Bird LLP Peter Swire.  Swire, who served on President Obama’s Review Group on Intelligence and Communications Technology and who, under President Clinton, helped to negotiate the U.S.-E.U. Safe Harbor agreement for trans-border data flows, reflects on how recent changes in U.S. surveillance policy, including the 2015 USA Freedom Act.  He contends that the Act, to a significant extent, reflects recommendations suggested by the Review Group. It also follows on from a series of pro-privacy reforms adopted by the Administration.  Collectively, Swire argues, these reforms go a considerable way towards addressing European concerns about U.S. surveillance practices, although there is still a considerable way to go.  The USA Freedom Act, although focused on domestic surveillance, provides encouragement that U.S. surveillance policy will continue to be reformed in a pro-privacy direction. The working paper is available at: http://inta.gatech.edu/jmce/working-papers.