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Baker & Mckenzie's Surveillance Law Comparison Guide 2016 Baker & McKenzie’s Surveillance Law Comparison Guide 2016 Baker & McKenzie’s Surveillance Law Comparison Guide 2016 ©2016 Baker & McKenzie All rights reserved. This publication is copyrighted. Apart from any fair dealing for the purposes of private study or research permitted under applicable copyright legislation, no part may be reproduced or transmitted by any process or means without the prior permission of the editors. The material in this guide is of the nature of general comment only. It is not offered as legal advice on any specific issue or matter and should not be taken as such. Readers should refrain from acting on the basis of any discussion contained in this publication without obtaining specific legal advice on the particular facts and circumstances at issue. While the authors have made every effort to provide accurate and up to date information on laws and regulations, these matters are continuously subject to change. Furthermore, the application of these laws depends on the particular facts and circumstances of each situation, and therefore readers should consult their attorney before taking any action. Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. Surveillance Law Comparison Baker & McKenzie Global Surveillance Law Survey The Court of Justice of the European Union (CJEU) raised the question whether the level of data protection in the USA is adequate and equivalent to the European Economic Area (EEA). The CJEU did not answer this question in its judgment of October 6, 2015, but noted concerns regarding reports of indiscriminate mass surveillance by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) in the United States.1 Since then, the EU Commission has published a revised draft adequacy decision relating to the United States data protection level and a proposed new “EU- U.S. Privacy Shield Program,” which is accompanied by assurances by a number of U.S. government authorities regarding privacy protections relating to surveillance programs.2 At the same time, other institutions in the EU and scholars have analysed the state of surveillance laws in individual jurisdictions within the EEA and elsewhere. They uniformly found comparisons difficult, as actual practices of intelligence authorities are cloaked in secrecy and laws are complex and fragmented in this area.3 Due to constitutional limitations on the EU’s jurisdiction to legislate matters of national security, the legal situation in the EEA member states is not very uniform. For example, in some EEA member states, senior police or military officers can issue search warrants.4 EU institutions have called for improvements in the U.S. as well as in the EEA.5 1 CJEU C-362/14 Schrems v. Data Protection Commissioner), 6.10.2015, #31. 2 http://ec.europa.eu/justice/data-protection/files/privacy-shield-adequacy- decision_en.pdf 3 Cate/Dempsey/Rubinstein, Systematic government access to private-sector data, 2 International Data Privacy Law, 215 (2012); Schwartz, Systematic government access to private-sector data in Germany, 2 International Data Privacy Law, 289 (2012); Brown, Government access to private-sector data in the United Kingdom, 2 International Data Privacy Law, 230 (2012). Freiwald/Métille, Reforming Surveillance Law: the Swiss Model, 28 Berkeley Tech. L. J., 1261 (2013). 4 See Study of the EU Agency for Fundamental Rights (FRA), Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU: Mapping Member States’ legal frameworks (2015), http://fra.europa.eu/en/publication/2015/surveillance-intelligence-services: A comparison Baker & McKenzie i Companies around the world are confronted with questions on how to comply with different jurisdictions’ laws and data access requests. Users and providers of cloud services, Software-as-a-Service and other services have to factor in government surveillance and data access practices of different countries into their business and location plans. With our surveillance law survey and heat map, we intend to contribute a global overview with broad jurisdictional scope to the discussion and corporate planning processes. See our heat maps here: Surveillance for Economic Purpose Data Subject Notifications Right to Court Review Publicized Cases Challenge to Orders Liability for Disclosure Of course, the situation regarding individual data access requests and responses is more nuanced than a comparative overview survey can address. Therefore, companies cannot rely on our overview as legal advice regarding a particular situation and have to continue to assess their own individual situation based on the pertinent facts and circumstances. Please contact us with any questions or suggestions. between US and EU data protection legislation for law enforcement purposes, www.europarl.europa.eu/RegData/etudes/STUD/2015/536459/IPOL_STU(2015)536459 _EN.pdf. 5 See studies cited in footnote 38. ii Baker & McKenzie Surveillance Law Comparison Baker & McKenzie’s Global Data Security Leadership Team Brian Hengesbaugh (Chicago) +1 312 861 3077 [email protected] Lothar Determann (Palo Alto) +1 650 856 5533 [email protected] Patrick Fair (Sydney) +61 2 8922 5534 [email protected] Paul Forbes (Sydney) +61 2 8922 5346 [email protected] Francesca Gaudino (Milan) +39 02 76231 452 [email protected] Daniel Krone (Munich) +49 89 5523 8156 [email protected] Theo Ling (Toronto) +1 416 865 6954 [email protected] Flavia Rebello (Sao Paulo) +55 11 3048 6851 [email protected] Michael Stoker (Chicago) +1 312 861 2870 [email protected] Baker & McKenzie iii Surveillance Law Comparison Contributing Lawyers Argentina Brazil Guillermo Cervio Flavia Rebello Buenos Aires Sao Paulo Tel: +54 11 4310 2223 Tel: +55 11 3048 6851 [email protected] [email protected] Roberto Grané Gabriela Paiva-Morette Buenos Aires Sao Paulo Tel: +54 11 4310 2214 Tel: +55 11 3048 6785 [email protected] [email protected] Sofia Canavessi Canada Buenos Aires Theodore Ling Tel: +54 11 5776 2329 Toronto [email protected] Tel: +416 865 6954 [email protected] Australia Patrick Fair Jonathan Tam Sydney Toronto Tel: +61 2 8922 5534 Tel: +416 865 2324 [email protected] [email protected] Adrian Lawrence Ricard Pochkhanawala Sydney Toronto Tel: +61 2 8922 5204 Tel: +416 865 6892 [email protected] ricard.pochkhanawala @bakermckenzie.com Ju Young Lee Sydney Chile Tel: +61 2 8922 5260 Diego Ferrada [email protected] Santiago Tel: +56 22 367 7087 Austria [email protected] Lukas Feiler Vienna Antonio Ortuzar, Jr. Tel: +43 1 24250 450 Santiago [email protected] Tel: +56 22 367 7078 [email protected] Ines Freitag Vienna Tel: +43 1 24250 276 [email protected] Baker & McKenzie v China (PRC) Finland Howard Wu Hannu Järvinen Shanghai Helsinki Tel: +86 21 6105 8538 Tel: +358 40 550 0306 [email protected] [email protected] Tracy Zhang Susanna Karlsson Shanghai Helsinki Tel: +86 21 6105 8582 Tel: + 358 20 713 3298 [email protected] [email protected] Colombia France Carolina Pardo Denise Lebeau-Marianna Bogota Paris Tel: +57 1 634 1559 Tel: +33 1 44 17 53 33 [email protected] denise.lebeau- [email protected] Sandra Castillo Bogota Idriss Kechida Tel: +57 1 634 1530 Paris [email protected] Tel: +33 1 44 17 59 08 [email protected] Daniela Cala Bogota Magalie Dansac Tel: +57 1 634 1500 Paris [email protected] Tel: +33 1 44 17 59 82 [email protected] Czech Republic Jiri Cermak Germany Prague Joachim Scherer Tel: +420 236 045 001 Frankfurt [email protected] Tel: +49 69 2 99 08 189 [email protected] Milena Hoffmanova Prague Caroline Heinickel Tel: +420 236 045 001 Frankfurt [email protected] Tel: +49 69 2 99 08 416 [email protected] Denmark Lisa Bo Larsen Hong Kong Copenhagen Paolo Sbuttoni Tel: +45 38 77 45 68 Hong Kong [email protected] Tel: +852 2846 1521 [email protected] Daiga Grunte-Sonne Copenhagen Tel: +45 38 77 41 18 [email protected] vi Baker & McKenzie Surveillance Law Comparison Gillian Lam Ireland Hong Kong John Cahir Tel: +852 2846 1686 Dublin [email protected] Tel: +353 1 649 2000 [email protected] Hungary Ines K. Radmilovic Alison Quinn Budapest Dublin Tel: +36 1 302 3330 Tel: +353 1 649 2461 [email protected] [email protected] Adam Liber Israel Budapest Nurit Dagan Tel: +36 1 302 3330 Tel Aviv [email protected] Tel: +972 3 692 7424 [email protected] Orsolya Gondos Budapest Daniel Reisner Tel: +36 1 302 3330 Tel Aviv [email protected] Tel: +972 3 692 2884 [email protected] India Probir Roy Chowdhury Italy Bangalore Francesca Gaudino Tel: +91-80-43503618 Milan [email protected] Tel: +39 02 76231 452 [email protected]
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