EU Watching U.S. Surveillance Debate for Privacy Shield Clues

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By Daniel R. Stoller

European Union officials are closely watching congressional efforts to reauthorize an expiring surveillance law for clues about the Trump administration’s commitment to limiting U.S. government access to Europeans’ personal data.

House Judiciary Chairman Robert Goodlatte (R-Va.) plans to introduce a bill Oct. 6, dubbed the USA Liberty Act, to extend Section 702 of the Foreign Intelligence Surveillance Act for six years but add new privacy and transparency requirements. The National Security Agency has broad authority under the law to collect information on overseas targets.

Legislation that demonstrates a commitment to limiting government surveillance and protecting privacy may help build EU trust in U.S. promises to protect the privacy of personal data transferred from the EU under the EU-U.S. Privacy Shield program. Alphabet Inc.'s Google, Facebook Inc., Microsoft Corp., nearly 2,500 other U.S. companies, and tens of thousands of EU companies rely on the program, which is subject to annual review.

European Commission spokesman Christian Wigand told Bloomberg BNA Oct. 5 that the commission, the EU’s executive body, is closely following the FISA Section 702 reauthorization process. The commission is “still studying the USA Liberty Act,” but would “certainly support further civil liberty protections and stronger remedies” for EU citizens “whose data is transferred under the Privacy Shield,” he said.

Lawmakers weighed the impact of the FISA legislation on the Privacy Shield program while writing the bill, Goodlatte told reporters Oct. 5.

Some in the EU have questioned President Donald Trump’s commitment to limiting U.S. government access to data transferred to the U.S. During the annual review of the Privacy Shield last month, EU officials said it was important to see how the U.S. dealt with the FISA reauthorization.

Goodlatte’s bill would update privacy protections and increase transparency surrounding Section 702. It would prevent the government from using data collected under Section 702 to pursue criminal prosecution against a U.S. citizen without a warrant or without consent unless certain exclusions apply. The bill would also call for the Director of the NSA and the Attorney General to jointly sign an affidavit that certifies collected communications under Section 702 that don’t contain foreign intelligence are deleted.

Additionally, the bill would increase privacy oversight protections by allowing members of the Privacy and Civil Liberties Oversight Board (PCLOB) to operate even when the board isn’t fully staffed. Currently, three members of the board must be present to conduct new business. The PCLOB is an independent, bipartisan executive branch agency created in the wake of 9/11 to ensure the consideration of privacy and civil liberties for government anti-terrorism and homeland security initiatives. At full strength, the board consists of five members.

Lawmakers are likely to reauthorize the expiring surveillance provisions before they expire Dec. 31. But it’s unclear how the issue will play out on Capitol Hill and whether the outcome will assuage European concerns.

Senate Action

Sen. Tom Cotton (R-Ark.) introduced a FISA reauthorization bill ( S.1297) June 6 that would extend the program permanently without changes. The bill has gained support from all Senate Intelligence Committee Republicans including Committee Chairman Richard Burr (R-N.C.). Cotton’s bill was referred to the Senate Judiciary Committee, which hasn’t acted on it.

Cotton won’t support the House’s effort to increase civil liberties protections under Section 702 because it puts U.S. “national security in jeopardy,” Caroline Rabbitt Tabler, communications director for Cotton, told Bloomberg BNA Oct. 5. Cotton “urges” the House to pass a clean reauthorization bill without a sunset provision and will “continue to work with the administration and his Senate colleagues to permanently extend” Section 702, she said.

Senate Democrats, including Intelligence Committee ranking member Dianne Feinstein (Calif.) and Sen. Al Franken (Minn.), have argued for a sunset provision to ensure regular review of the surveillance authority to make sure privacy protections are maintained.

White House Homeland Security Adviser Tom Bossert and the Department of Justice support reauthorizing FISA Section 702 without a sunset provision or any privacy protection updates.

Representatives for the White House didn’t immediately respond to Bloomberg BNA’s email requests for comment.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

Overview of the USA Liberty Act is available at http://src.bna.com/s8P.

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