OTI and SNV Release Report on Surveillance Reforms to Restore EU-U.S. Data Transfers

Today, New America’s Open Technology Institute (OTI) and German think tank Stiftung Neue Verantwortung (SNV) released a report entitled “Solving the Transatlantic Data Dilemma: Surveillance Reforms to Break the International Gridlock,” offering a comparative analysis of surveillance laws and practices between the U.S. and some EU member states, and making broad recommendations for surveillance reforms all governments can implement to better safeguard privacy rights in light of the Schrems II decision.

In the July 2020 Schrems II decision, the Court of Justice of the European Union (CJEU) invalidated the Privacy Shield, which over 5,300 companies relied on to facilitate data transfers between the United States and Europe. The basis of the CJEU’s decision was that U.S. surveillance authorities—specifically Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333—do not contain adequate protections for the personal data of European Union (EU) citizens, and that the United States also does not provide any means for EU citizens to seek meaningful redress if their rights are infringed upon.

Since then, many companies have been left questioning the future of transatlantic data flows. The United States and EU Commission are working to negotiate a successor agreement, but have not yet announced a path forward.

With the U.S. and EU considering solutions, OTI released a report in April 2021 putting forth recommendations for reform measures that the U.S. government could implement in the near-term, mostly without the need for congressional action. Today’s report follows on by reviewing recent jurisprudence and surveillance reforms in several democracies and recommending steps governments can take to better meet evolving international standards of necessity and proportionality, and thereby ensure the free flow of data with trust can resume.

The following quote can be attributed to Lauren Sarkesian, senior policy counsel at New America’s Open Technology Institute:

“Our governments, especially the U.S. government, should consider the Privacy Shield successor an opportunity to adopt much-needed surveillance reforms. But the EU and U.S. governments also need to think beyond the near-term fixes that could satisfy the Court of Justice of the European Union, and make holistic reforms that could prevent future halts to transnational data flows. Most pressingly, this requires addressing legal loopholes such as government purchases of data from data brokers, an increasingly common method for U.S. government agencies to obtain personal data.”

The following quote can be attributed to Thorsten Wetzling, Head of Research, Digital Rights, Surveillance and Democracy at Stiftung Neue Verantwortung:

“During its G7 presidency next year, the new German government has the opportunity to pursue the kind of active digital foreign policy that the ‘traffic light’ coalition agreement refers to. Particularly with regard to the protection of personal data in the context of cross-border transfers and proportionate government access to personal data held by the private sector it is time to set better standards, at least amongst liberal democracies.”

The following quote can be attributed to Charlotte Dietrich, Project Manager, Digital Rights, Surveillance and Democracy at Stiftung Neue Verantwortung

"Governments need to do better in addressing the elephants in the room regarding disproportionate government access to personal data in the context of cross-border data transfers. Our new report reviews recent jurisprudence on and evolving good practice for surveillance governance. It offers concrete recommendations for lawmakers on both sides of the Atlantic on how to better protect fundamental rights. It is important that democracies improve and align their standards vis-à-vis authoritarian regimes.”