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3 Eur. Data Prot. L. Rev. 111 (2017)
Whither Privacy Shield in the Trump Era?

handle is hein.journals/edpl3 and id is 117 raw text is: Reports | 111 United States of America Whither Privacy Shield in the Trump Era? Alan Butler* 1. Introduction: Privacy Shield under Pressure? Over the last three years there have been many pos- itive developments in the US and EU data protection regimes, but now many fear that the political climate in the United States and elsewhere could upend the new system. The development of the General Data Protection Regulation (GDPR) in the EU and the pas- sage of the USA FREEDOM Act' and implementa- tion of new executive branch surveillance rules in the United States have been a major part of this trend to- ward greater protection. So have the decisions in both the Court of Justice of the European Union (CJEU) and the United States Supreme Court on important emerging privacy issues. But many now feel that the EU-US Privacy Shield agreement2, which was negotiated following the CJEU decision striking down Safe Harbor in Schrens3, could be at risk due to the elimination of Alan Butler, Senior Counsel, Electronic Privacy Information Center (EPIC). For correspondence <butler@epic.org>. DOL 10.21552/edpl/2017/1/17 1 The Act is entitled 'Uniting and Strengthening America by Fulfill- ing Rights and Ensuring Effective Discipline Over Monitoring Act of 2015' or in short 'USA FREEDOM ACT of 2015', enacted 2 June 2015 <https://www.congress.gov/1 14/bil ls/hr2048/BILLS -114hr2O48enr.pdf> accessed 10 March 2017. 2 All related documents can be found at European Commission, 'The EU-U.S. Privacy Shield' (2016) <http://ec.europa.eu/justice/ data-protection/international-transfers/eu-us-privacy-shield/index en.htm> accessed 10 March 2017. Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (notified under document C(201 6) 4176) OJ L 207, 1 August 2016, 1-112 <http://eur-lex.europa.eu/eli/dec-impl/2016/ 1250/oj> accessed 10 March 2017. 3 Case C-362/14 Maximillian Schrems v Data Protection Commis- sioner (CJEU, 2015) ECLI:EU:C:2015:650. 4 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 (n 2), esp. recitals 145 et seq and art 4(4). 5 Executive Order 13768, Enhancing Public Safety in the Interior of the United States, January 25, 2017, 82 Fed Reg 8799 (30 January 2017) <https://www.gpo.gov/fdsys/pkg/FR-201 7-01-30/pdf/201 7 -021 02.pdf> accessed 10 March 2017. key privacy protections in the United States. Three developments, in particular, could begin to desta- bilise the agreement and will likely be raised in the Agreement's 'annual joint review' this year. The first is a provision included in one of President Trump's first Executive Orders, which requires government agencies to 'ensure that their privacy policies exclude persons who are not United States citizens'from pro- tections of the Privacy Act. The second is the near defunct status of the US Privacy and Civil Liberties Oversight Board (PCLOB), which now lacks both a quorum and a chairman to authorise reports and oth- er oversight actions. And third is an order by the head of the US Intelligence Community that created new rules for the dissemination of 'raw' signals intelli- gence data within the government. Any one of these three developments might not, by itself, be enough to fatally undermine the Privacy Shield agreement. But, these changes, when viewed together in combination with the quickly shifting policies and political priorities in the United States, could create enough instability to topple the delicate- lybalanced structure of the Privacy Shield. The Agree- ment was based on promises made by both countries to improve privacy safeguards, enforcement, and transparency. But, recognizing that many of these policies could be subject to change by future admin- istrations, the countries agreed to an 'annual joint re- view' to monitor compliance with the commitments of the Agreement.4 On the US side, these commit- ments included new redress mechanisms for EU cit- izens as well as clear limitations, safeguards and over sight mechanisms for government surveillance. 11. The Problematic Measures 1. Executive Order 13768 President Trump's Executive Order5 may fatally un- dermine the US commitment to provide protections EDPL 1|2017

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