Herwig Hofmann on the Schrems Decision

Few recent decisions of the Court of Justice have attracted as much comment -- or controversy -- as the Schrems decision on the data protection "safe harbor."  As part of our ongoing series of posts regarding the case, we are delighted to publish here an analysis and comment by network member Herwig Hofmann (Luxembourg).  Herwig's perspective is of particular interest, as he represented Max Schrems before the Court of Justice in the case.  In the post below, he explores some of the broader implications of the decision.

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The Essence of EU Fundamental Rights and their Global Reach 

Herwig C.H. Hofmann[1]

The CJEU ruling in Schrems v Data Protection Commissioner[2] will be subject to many discussions on constitutional matters for the time to come. It is a landmark case not only for clarifying and applying the basic conceptual understanding of fundamental rights in the EU. The Schrems case clarifies therein many further aspects of conditions for effective protection of a right, supervision by Member State authorities as well as the global reach of EU fundamental rights, at least regarding information rights and their protection. As is typical for many essential developments in public law, these developments originate from the very specific structural and substantive context of a specific policy area’s administrative law details. But the consequences will radiate also into debates on pluralism of multi-level legal orders in an inter-connected world.

The background to Schrems v DPC is as follows: Supervision of compliance with EU data protection rules takes place by national authorities vested with “complete independence”[3] within the territory of each Member State. Transfer of data from the EU to a third country is possible only if that country has an “adequate level” of data protection, a fact the European Commission may certify by means of a decision.[4] In 2000, the Commission had taken an adequacy decision with respect to the United States of America, a decision became known as the “Safe Harbour Decision”.[5] The Court of Justice of the European Union (CJEU) had the opportunity to review the compliance of the various elements of the data protection regime, especially the conditions of the Commission decisions declaring a third country to maintain an adequate level of protection, upon request for preliminary reference by the High Court of Ireland in a judicial review procedure of a decision of the Irish Data Protection Commissioner (DPC) not to accept a complaint about Facebook Ireland transferring personal data to Facebook servers in the US.

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.

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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.

The Network on SSRN: Richard J. Peltz-Steele, "The New American Privacy"

Network member Richard J. Peltz-Steele (UMass-Dartmouth), has a new article posted on SSRN, forthcoming the Georgetown Journal of International Law.  The article can be downloaded here, and the abstract is reproduced below.

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Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.