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Understanding Schrems II and Its Impact on the EU-US Privacy Shield
EU Data Transfer Requirements and U.S. Intelligence Laws: Understanding Schrems II and Its Impact on the EU-U.S. Privacy Shield March 17, 2021 Congressional Research Service https://crsreports.congress.gov R46724 SUMMARY R46724 EU Data Transfer Requirements and U.S. March 17, 2021 Intelligence Laws: Understanding Schrems II Chris D. Linebaugh and Its Impact on the EU-U.S. Privacy Shield Legislative Attorney On July 16, 2020, in a decision referred to as Schrems II, the Court of Justice of the European Edward C. Liu Union (CJEU) invalidated the EU-U.S. Privacy Shield (Privacy Shield). Privacy Shield is a Legislative Attorney framework developed by the European Union (EU) and the United States to facilitate cross- border transfers of personal data for commercial purposes. Privacy Shield requires companies and organizations that participate in the program to abide by various data protection requirements and, in return, assures the participants that the transfer is compliant with EU law. The CJEU, however, found Privacy Shield inadequate in part because it does not restrain U.S. intelligence authorities’ data collection activities. According to the CJEU, U.S. law allows intelligence agencies to collect and use the personal data transferred under the Privacy Shield framework in a manner that is inconsistent with rights guaranteed under EU law. The CJEU focused on Section 702 of the Foreign Intelligence Surveillance Act, Executive Order 12333, and Presidential Policy Directive 28, which govern how the U.S. government may conduct surveillance of non-U.S. persons located outside of the United States. The CJEU’s Schrems II ruling has significant implications for personal data transfers between the EU and the United States. -
Exhibit a Case 3:16-Cr-00051-BR Document 545-2 Filed 05/11/16 Page 2 of 86
Case 3:16-cr-00051-BR Document 545-2 Filed 05/11/16 Page 1 of 86 Exhibit A Case 3:16-cr-00051-BR Document 545-2 Filed 05/11/16 Page 2 of 86 Executive Order 12333 United States Intelligence Activities (As amended by Executive Orders 13284 (2003), 13355 (2004) and 134 70 (2008)) PREAMBLE Timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers , organizations, and persons, and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence possible. For that purpose, by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947, as amended, (Act) and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows: PART 1 Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts 1.1 Goals. The United States intelligence effort shall provide the President, the National Security Council, and the Homeland Security Council with the necessary information on which to base decisions concerning the development and conduct of foreign, defense, and economic policies, and the protection of United States national interests from foreign security threats. All departments and agencies shall cooperate fully to fulfill this goal. (a} All means, consistent with applicable Federal law and this order, and with full consideration of the rights of United States persons, shall be used to obtain reliable intelligence information to protect the United States and its interests. -
Through a PRISM, Darkly(PDF)
NANOG 59 – October 7, 2013 Through a PRISM, Darkly Mark Rumold Staff Attorney, EFF NANOG 59 – October 7, 2013 Electronic Frontier Foundation NANOG 59 – October 7, 2013 NANOG 59 – October 7, 2013 NANOG 59 – October 7, 2013 What we’ll cover today: • Background; what we know; what the problems are; and what we’re doing • Codenames. From Stellar Wind to the President’s Surveillance Program, PRISM to Boundless Informant • Spying Law. A healthy dose of acronyms and numbers. ECPA, FISA and FAA; 215 and 702. NANOG 59 – October 7, 2013 the background NANOG 59 – October 7, 2013 changes technologytimelaws …yet much has stayed the same NANOG 59 – October 7, 2013 The (Way) Background • Established in 1952 • Twin mission: – “Information Assurance” – “Signals Intelligence” • Secrecy: – “No Such Agency” & “Never Say Anything” NANOG 59 – October 7, 2013 The (Mid) Background • 1960s and 70s • Cold War and Vietnam • COINTELPRO and Watergate NANOG 59 – October 7, 2013 The Church Committee “[The NSA’s] capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything. Telephone conversations, telegrams, it doesn't matter. There would be no place to hide.” Senator Frank Church, 1975 NANOG 59 – October 7, 2013 Reform • Permanent Congressional oversight committees (SSCI and HPSCI) • Foreign Intelligence Surveillance Act (FISA) – Established requirements for conducting domestic electronic surveillance of US persons – Still given free reign for international communications conducted outside U.S. NANOG 59 – October 7, 2013 Changing Technology • 1980s - 2000s: build-out of domestic surveillance infrastructure • NSA shifted surveillance focus from satellites to fiber optic cables • BUT: FISA gives greater protection for communications on the wire + surveillance conducted inside the U.S. -
Suspect Until Proven Guilty, a Problematization of State Dossier Systems Via Two Case Studies: the United States and China
University of Pennsylvania ScholarlyCommons Publicly Accessible Penn Dissertations Fall 2009 Suspect Until Proven Guilty, a Problematization of State Dossier Systems via Two Case Studies: The United States and China Kenneth N. Farrall University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/edissertations Part of the Asian Studies Commons, Communication Technology and New Media Commons, International and Intercultural Communication Commons, and the Social Influence and oliticalP Communication Commons Recommended Citation Farrall, Kenneth N., "Suspect Until Proven Guilty, a Problematization of State Dossier Systems via Two Case Studies: The United States and China" (2009). Publicly Accessible Penn Dissertations. 51. https://repository.upenn.edu/edissertations/51 This paper is posted at ScholarlyCommons. https://repository.upenn.edu/edissertations/51 For more information, please contact [email protected]. Suspect Until Proven Guilty, a Problematization of State Dossier Systems via Two Case Studies: The United States and China Abstract This dissertation problematizes the "state dossier system" (SDS): the production and accumulation of personal information on citizen subjects exceeding the reasonable bounds of risk management. SDS - comprising interconnecting subsystems of records and identification - damage individual autonomy and self-determination, impacting not only human rights, but also the viability of the social system. The research, a hybrid of case-study and cross-national comparison, was guided in part by a theoretical model of four primary SDS driving forces: technology, political economy, law and public sentiment. Data sources included government documents, academic texts, investigative journalism, NGO reports and industry white papers. The primary analytical instrument was the juxtaposition of two individual cases: the U.S. -
A Public Accountability Defense for National Security Leakers and Whistleblowers
A Public Accountability Defense For National Security Leakers and Whistleblowers The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Yochai Benkler, A Public Accountability Defense For National Security Leakers and Whistleblowers, 8 Harv. L. & Pol'y Rev. 281 (2014). Published Version http://www3.law.harvard.edu/journals/hlpr/files/2014/08/ HLP203.pdf Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12786017 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#OAP A Public Accountability Defense for National Security Leakers and Whistleblowers Yochai Benkler* In June 2013 Glenn Greenwald, Laura Poitras, and Barton Gellman be- gan to publish stories in The Guardian and The Washington Post based on arguably the most significant national security leak in American history.1 By leaking a large cache of classified documents to these reporters, Edward Snowden launched the most extensive public reassessment of surveillance practices by the American security establishment since the mid-1970s.2 Within six months, nineteen bills had been introduced in Congress to sub- stantially reform the National Security Agency’s (“NSA”) bulk collection program and its oversight process;3 a federal judge had held that one of the major disclosed programs violated the -
Summary of U.S. Foreign Intelligence Surveillance Law, Practice, Remedies, and Oversight
___________________________ SUMMARY OF U.S. FOREIGN INTELLIGENCE SURVEILLANCE LAW, PRACTICE, REMEDIES, AND OVERSIGHT ASHLEY GORSKI AMERICAN CIVIL LIBERTIES UNION FOUNDATION AUGUST 30, 2018 _________________________________ TABLE OF CONTENTS QUALIFICATIONS AS AN EXPERT ............................................................................................. iii INTRODUCTION ......................................................................................................................... 1 I. U.S. Surveillance Law and Practice ................................................................................... 2 A. Legal Framework ......................................................................................................... 3 1. Presidential Power to Conduct Foreign Intelligence Surveillance ....................... 3 2. The Expansion of U.S. Government Surveillance .................................................. 4 B. The Foreign Intelligence Surveillance Act of 1978 ..................................................... 5 1. Traditional FISA: Individual Orders ..................................................................... 6 2. Bulk Searches Under Traditional FISA ................................................................. 7 C. Section 702 of the Foreign Intelligence Surveillance Act ........................................... 8 D. How The U.S. Government Uses Section 702 in Practice ......................................... 12 1. Data Collection: PRISM and Upstream Surveillance ........................................ -
April 11, 2014 Privacy and Civil Liberties Oversight Board 2100 K St
April 11, 2014 Privacy and Civil Liberties Oversight Board 2100 K St. NW, Suite 500 Washington, D.C. 20427 Re: March 19, 2014 Public Hearing Dear Chairman Medine and Board Members: The Constitution Project (TCP) welcomes this opportunity to comment on the March 19, 2014 public hearing and to offer our views on whether the federal government’s surveillance programs operated under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1881a, properly balance efforts to protect the Nation with the need to protect privacy and civil liberties. TCP is a non-profit think tank and advocacy organization that brings together unlikely allies—experts and practitioners from across the political spectrum—to develop consensus-based solutions to some of the most difficult constitutional challenges of our time. TCP’s bipartisan Liberty and Security Committee, comprised of former elected officials, former members of the law enforcement and intelligence communities, as well as legal academics, practitioners and advocates, previously made recommendations for statutory amendments to add warrant requirements and increase judicial and congressional oversight of Section 702 programs. See TCP’s September 2012 Report on the FISA Amendments Act. Liberty and Security Committee members convened following the PCLOB’s March 19, 2014 hearing, discussed the witness testimony and other newly available information, and agreed to reaffirm their previous policy on Section 702, with the following additional comments and recommendations.1 I. The Operation of Section 702 Our comments are supported by information about the operation of Section 702 recently revealed through declassified Foreign Intelligence Surveillance Court (FISC) opinions and leaks by National Security Agency (NSA) contractor Edward Snowden. -
How the Fallout from Post-9/11 Surveillance Programs Can Inform Privacy Protections for COVID-19 Contact Tracing Programs
City University of New York Law Review Volume 24 Issue 1 Winter 2021 How the Fallout from Post-9/11 Surveillance Programs Can Inform Privacy Protections for COVID-19 Contact Tracing Programs Emma Mendelson CUNY School of Law Follow this and additional works at: https://academicworks.cuny.edu/clr Part of the Law Commons Recommended Citation Emma Mendelson, How the Fallout from Post-9/11 Surveillance Programs Can Inform Privacy Protections for COVID-19 Contact Tracing Programs, 24 CUNY L. Rev. 35 (2021). Available at: https://academicworks.cuny.edu/clr/vol24/iss1/4 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact [email protected]. HOW THE FALLOUT FROM POST-9/11 SURVEILLANCE PROGRAMS CAN INFORM PRIVACY PROTECTIONS FOR COVID-19 CONTACT TRACING PROGRAMS Emma Mendelson† INTRODUCTION ................................................................... 35 I. THE BUSH ADMINISTRATION AND THE BROADENED SCOPE OF SURVEILLANCE ................................................................... 38 A. The Law and the NSA .................................................... 38 B. The Wave of Backlash Comes Crashing Down ............. 44 II. NATIONAL SECURITY AND PUBLIC HEALTH SURVEILLANCE DURING COVID-19 ........................................................... 46 A. Background on the Data Changes Since 9/11 .............. 47 B. What Does Surveillance During the COVID-19 Pandemic Look Like? .................................................. 48 C. Emerging Criticisms -
National Programmes for Mass Surveillance of Personal Data in Eu Member States and Their Compatibility with Eu Law
DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS NATIONAL PROGRAMMES FOR MASS SURVEILLANCE OF PERSONAL DATA IN EU MEMBER STATES AND THEIR COMPATIBILITY WITH EU LAW STUDY Abstract In the wake of the disclosures surrounding PRISM and other US surveillance programmes, this study makes an assessment of the large-scale surveillance practices by a selection of EU member states: the UK, Sweden, France, Germany and the Netherlands. Given the large-scale nature of surveillance practices at stake, which represent a reconfiguration of traditional intelligence gathering, the study contends that an analysis of European surveillance programmes cannot be reduced to a question of balance between data protection versus national security, but has to be framed in terms of collective freedoms and democracy. It finds that four of the five EU member states selected for in-depth examination are engaging in some form of large-scale interception and surveillance of communication data, and identifies parallels and discrepancies between these programmes and the NSA-run operations. The study argues that these surveillance programmes do not stand outside the realm of EU intervention but can be engaged from an EU law perspective via (i) an understanding of national security in a democratic rule of law framework where fundamental human rights standards and judicial oversight constitute key standards; (ii) the risks presented to the internal security of the Union as a whole as well as the privacy of EU citizens as data owners, and (iii) the potential spillover into the activities and responsibilities of EU agencies. -
The Criminalization of Whistleblowing
THE CRIMINALIZATION OF WHISTLEBLOWING JESSELYN RADACK & KATHLEEN MCCLELLAN1 INTRODUCTION The year 2009 began a disturbing new trend: the criminalization of whistleblowing. The Obama administration has pursued a quiet but relentless campaign against the news media and their sources. This Article focuses on the sources who, more often than not, are whistleblowers. A spate of “leak” prosecutions brought under the Espionage Act2 has shaken the world of whistleblower attorneys, good- government groups, transparency organizations, and civil liberties advocates. The Obama administration has prosecuted fi ve criminal cases 1. Jesselyn Radack is National Security and Human Rights Director at the Government Accountability Project (GAP), a non-profi t organization dedicated to promoting corporate and government accountability by protecting whistleblowers, advancing occupational free speech, and empowering citizen activists. Kathleen McClellan is National Security and Human Rights Counsel at GAP. 2. Espionage Act of 1917, Pub. L. 65-24, 40 Stat. 217 (June 15, 1917). 57 58 THE LABOR & EMPLOYMENT LAW FORUM [Vol. 2:1 under the Espionage Act, which is more than all other presidential administrations combined.3 These “leak” prosecutions send a chilling message to public servants, as they are contrary to President Barack Obama’s pledge of openness and transparency.4 The vast majority of American citizens do not take issue with the proposition that some things should be kept secret, such as sources and methods, nuclear designs, troop movements, and undercover identities.5 However, the campaign to fl ush out media sources smacks of retaliation and intimidation. The Obama administration is right to protect information that might legitimately undermine national security or put Americans at risk. -
Damming the Leaks: Balancing National Security, Whistleblowing and the Public Interest
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Lincoln Memorial University, Duncan School of Law: Digital Commons... LINCOLN MEMORIAL UNIVERSITY LAW REVIEW _____________________________________ VOLUME 3 FALL 2015 _____________________________________ DAMMING THE LEAKS: BALANCING NATIONAL SECURITY, WHISTLEBLOWING AND THE PUBLIC INTEREST Jason Zenor1 In the last few years we have had a number of infamous national security leaks and prosecutions. Many have argued that these people have done a great service for our nation by revealing the wrongdoings of the defense agencies. However, the law is quite clear- those national security employees who leak classified information are subject to lengthy prison sentences or in some cases, even execution as a traitor. In response to the draconian national security laws, this article proposes a new policy which fosters the free flow of information. First, the article outlines the recent history of national security leaks and the government response to the perpetrators. Next, the article outlines the information policy of the defense industry including the document classification system, the Freedom of Information Act (FOIA), whistleblower laws and the Espionage Act. Finally, the article outlines a new policy that will advance government transparency by promoting whistleblowing that serves the public interest, while balancing it with government efficiency 1 Assistant Professor, School of Communication, Media and the Arts, State University of New York-Oswego. DAMMING THE LEAKS 62 by encouraging proper channels of dissemination that actually respond to exposures of government mismanagement. “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” Justice Hugo Black2 “The oath of allegiance is not an oath of secrecy [but rather] an oath to the Constitution.” Edward Snowden3 I. -
E-Mails from Inside the NSA Bureaucracy
7/28/2016 Electrospaces.net 6 More Next Blog» Create Blog Sign In June 24, 2016 Welcome to Electrospaces.net! Here you can read about: E-mails from inside the NSA bureaucracy - Signals Intelligence (SIGINT), - Communications Security (COMSEC), Earlier this month, the NSA declassified a huge set of internal e-mails, following FOIA- - Information Classification, requests about the issue of whether Edward Snowden had raised concerns about the and also about the equipment, from NSA's surveillance programs through proper channels inside the agency. past and present, which make that civilian and military leaders can > Download the declassified e-mails (very large pdf) communicate in order to fulfill their duties. Here, we will take a look at the administrative details these internal NSA e-mails The main focus will be on the United provide. Next time we will see what their content says about the concerns that States and its National Security Snowden claimed to have raised. Agency (NSA), but attention will also be paid to other countries and subjects. Any comments, additions, corrections, questions or suggestions will be very appreciated! There's no login or registration required for commenting. twitter.com/electrospaces info (at) electrospaces.net PGP Public Key ID: FD9FD4E6 The postings on this weblog are updated frequently as new information about the NSA is still being revealed. Therefore, revisit this weblog and check the articles for updates! Index of all postings Internal e-mail from NSA director Michael Rogers. In the signature block we see his NSANet and SIPRNet e-mail addresses and his non-secure phone number (all redacted) (Click to enlarge - See also: NSA director Alexander's phones) Recent Posts E-mails from inside the NSA bureaucracy E-mail addresses German journalists about working with the Snowden documents http://electrospaces.blogspot.dk/ 1/18 7/28/2016 Electrospaces.net Except from the classification markings, the NSA's internal e-mails aren't very different from those exchanged by most other people around the world.