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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. -
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. -
What Is Xkeyscore, and Can It 'Eavesdrop on Everyone, Everywhere'? (+Video) - Csmonitor.Com
8/3/13 What is XKeyscore, and can it 'eavesdrop on everyone, everywhere'? (+video) - CSMonitor.com The Christian Science Monitor CSMonitor.com What is XKeyscore, and can it 'eavesdrop on everyone, everywhere'? (+video) XKeyscore is apparently a tool the NSA uses to sift through massive amounts of data. Critics say it allows the NSA to dip into people's 'most private thoughts' – a claim key lawmakers reject. This photo shows an aerial view of the NSA's Utah Data Center in Bluffdale, Utah. The long, squat buildings span 1.5 million square feet, and are filled with super powered computers designed to store massive amounts of information gathered secretly from phone calls and emails. (Rick Bowmer/AP/File) By Mark Clayton, Staff writer / August 1, 2013 at 9:38 pm EDT Topsecret documents leaked to The Guardian newspaper have set off a new round of debate over National Security Agency surveillance of electronic communications, with some cyber experts saying the trove reveals new and more dangerous means of digital snooping, while some members of Congress suggested that interpretation was incorrect. The NSA's collection of "metadata" – basic call logs of phone numbers, time of the call, and duration of calls – is now wellknown, with the Senate holding a hearing on the subject this week. But the tools discussed in the new Guardian documents apparently go beyond mere collection, allowing the agency to sift through the www.csmonitor.com/layout/set/print/USA/2013/0801/What-is-XKeyscore-and-can-it-eavesdrop-on-everyone-everywhere-video 1/4 8/3/13 What is XKeyscore, and can it 'eavesdrop on everyone, everywhere'? (+video) - CSMonitor.com haystack of digital global communications to find the needle of terrorist activity. -
The Right to Privacy and the Future of Mass Surveillance’
‘The Right to Privacy and the Future of Mass Surveillance’ ABSTRACT This article considers the feasibility of the adoption by the Council of Europe Member States of a multilateral binding treaty, called the Intelligence Codex (the Codex), aimed at regulating the working methods of state intelligence agencies. The Codex is the result of deep concerns about mass surveillance practices conducted by the United States’ National Security Agency (NSA) and the United Kingdom Government Communications Headquarters (GCHQ). The article explores the reasons for such a treaty. To that end, it identifies the discriminatory nature of the United States’ and the United Kingdom’s domestic legislation, pursuant to which foreign cyber surveillance programmes are operated, which reinforces the need to broaden the scope of extraterritorial application of the human rights treaties. Furthermore, it demonstrates that the US and UK foreign mass surveillance se practices interferes with the right to privacy of communications and cannot be justified under Article 17 ICCPR and Article 8 ECHR. As mass surveillance seems set to continue unabated, the article supports the calls from the Council of Europe to ban cyber espionage and mass untargeted cyber surveillance. The response to the proposal of a legally binding Intelligence Codexhard law solution to mass surveillance problem from the 47 Council of Europe governments has been so far muted, however a soft law option may be a viable way forward. Key Words: privacy, cyber surveillance, non-discrimination, Intelligence Codex, soft law. Introduction Peacetime espionage is by no means a new phenomenon in international relations.1 It has always been a prevalent method of gathering intelligence from afar, including through electronic means.2 However, foreign cyber surveillance on the scale revealed by Edward Snowden performed by the United States National Security Agency (NSA), the United Kingdom Government Communications Headquarters (GCHQ) and their Five Eyes partners3 1 Geoffrey B. -
Bulk Powers in the Investigatory Powers Bill: the Question of Trust Remains Unanswered
Bulk Powers In The Investigatory Powers Bill: The Question Of Trust Remains Unanswered BULK POWERS IN THE INVESTIGATORY POWERS BILL: The Question Of Trust Remains Unanswered September 2016 1/10 Bulk Powers In The Investigatory Powers Bill: The Question Of Trust Remains Unanswered Introduction We are on the brink of introducing the most pervasive and intrusive surveillance legislation of any democratic country in the world. The Investigatory Powers Bill sought to answer important questions about the place that modern and highly intrusive surveillance capabilities have in a democratic society, questions that were raised by the Edward Snowden disclosures in 2013 and subsequent reports produced by David Anderson QC, the Royal United Services Institute (RUSI) and the Intelligence and Security Committee (ISC) in 2015. But just a matter of weeks before the new law is enacted, significant questions of trust remain unanswered. This paper highlights some of the key flaws Privacy International sees in the current incarnation of the Investigatory Powers Bill, and urges the House of Lords to put the brakes on the bulk powers, about which many important questions remain unanswered. In this paper we set out how: • the Bill fails to provide sufficient clarity, which was promised at the outset of the legislative process, to alleviate confusion around the UK’s surveillance laws; • the Bill has not advanced transparency to the degree needed, still leaving most of the public in the dark about the extent of the surveillance powers; • significant questions remain about the Bill’s safeguards and oversight regime; and • major questions also remain regarding the bulk powers, even in light of David Anderson QC’s recent report. -
Membership Lists, Metadata, and Freedom of Association's Specificity Requirement
Membership Lists, Metadata, and Freedom of Association's Specificity Requirement KATHERINE J. STRANDBURG* Over the past year, documents revealed by leaker Edward Snowden and declassified by the government have provided a detailed look at some aspects of the National Security Agency's (NSA's) surveillance of electronic communications and transactions. Attention has focused on the NSA's mass collection from major telecommunications carriers of so-called "telephony metadata," which includes dialing and dialed numbers, call time, duration, and the like.' The goal of comprehensive metadata collection is what I have elsewhere called "relational surveillance"2-to follow "chains of communications" between "telephone numbers associated with known or suspected terrorists and other telephone numbers" and then to "analyze those connections in a way that can help identify terrorist * Alfred B. Engelberg Professor of Law, New York University School of Law. Professor Strandburg acknowledges the generous support of the Filomen D'Agostino and Max E. Greenberg Research Fund. 1 The term "metadata" has been widely adopted in discussing the NSA's data collection activities and so I will use it here. When one moves beyond call traffic data, however, the term's meaning in the data surveillance context is problematic, ill-defined and may obscure the need for careful analysis. As one illustration of these issues, consider NSA documents recently made public in connection with news reports of NSA monitoring of text messages, which refer, in language that would have made the Red Queen proud, to "content derived metadata." See James Ball, NSA DishfirePresentation on Text Message Collection-Key Extracts, THE GUARDIAN, Jan. -
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. -
S. 1123, the USA Freedom Act of 2015 Dear Members of the Senate
WASHINGTON LEGISLATIVE OFFICE May 23, 2015 RE: S. 1123, the USA Freedom Act of 2015 Dear Members of the Senate: Section 215 of the Patriot Act expanded the reach of the intelligence agencies in unprecedented ways and is the basis for collecting and retaining records on AMERICAN CIVIL millions of innocent Americans. The ACLU opposed Section 215 when it LIBERTIES UNION WASHINGTON was introduced, has fought it at each successive reauthorization, and urges LEGISLATIVE OFFICE Congress to let it sunset on June 1st. 915 15th STREET, NW, 6 TH FL WASHINGTON, DC 20005 T/202.544.1681 F/202.546.0738 This week, the Senate is scheduled to vote on S. 1123, the USA Freedom Act WWW.ACLU.ORG of 2015, which proposes modest reforms to Section 215, Section 214 (the pen MICHAEL W. MACLEOD-BALL register and trap and trace device provision, “PR/TT”), and national security ACTING DIRECTOR letter authorities. The bill also seeks to increase transparency over government NATIONAL OFFICE surveillance activities but could be construed to codify a new surveillance 125 BROAD STREET, 18 TH FL. regime of more limited, yet still massive scope. NEW YORK, NY 10004-2400 T/212.549.2500 Earlier this month, the Second Circuit unequivocally ruled that the OFFICERS AND DIRECTORS 1 SUSAN N. HERMAN government’s bulk metadata program violated the law. In light of this PRESIDENT decision, it is clear that more robust surveillance reform is needed. Though an ANTHONY D. ROMERO improvement over the status quo in some respects, the USA Freedom Act EXECUTIVE DIRECTOR does not go far enough to rein in NSA abuses and contains several concerning ROBERT REMAR provisions. -
Introduction the Intelligence Community (IC) – General Information
Guide to Posted Documents Regarding Use of National Security Authorities – Updated as of January, 2020 Contents Introduction .................................................................................................................................................. 1 The Intelligence Community (IC) – General Information .............................................................................. 1 IC Framework for Protecting Civil Liberties and Privacy and Enhancing Transparency ................................ 3 Reports on Use of National Security Authorities. ......................................................................................... 5 Section 702: - Overviews............................................................................................................................... 6 Section 702: Targeting and Minimization ..................................................................................................... 7 Section 702: Compliance, Oversight, and Other Documents ....................................................................... 8 FISA: Other Provisions ................................................................................................................................... 9 FISA: FISC and FISCR Opinions..................................................................................................................... 10 Executive Order 12333 ................................................................................................................................ 11 Presidential -
Jus Algoritmi: How the NSA Remade Citizenship
Extended Abstract Jus Algoritmi: How the NSA Remade Citizenship John Cheney-Lippold 1 1 University of Michigan / 500 S State St, Ann Arbor, MI 48109, United States of America / [email protected] Introduction It was the summer of 2013, and two discrete events were making analogous waves. First, Italy’s Minister for Integration, Cécile Kyenge was pushing for a change in the country’s citizenship laws. After a decades-long influx of immigrants from Asia, Africa, and Eastern Europe, the country’s demographic identity had become multicultural. In the face of growing neo-nationalist fascist movements in Europe, Kyenge pushed for a redefinition of Italian citizenship. She asked the state to abandon its practice of jus sanguinis, or citizenship rights by blood, and to adopt a practice of jus soli, or citizenship rights by landed birth. Second, Edward Snowden fled the United States and leaked to journalists hundreds of thousands of classified documents from the National Security Agency regarding its global surveillance and data mining programs. These materials unearthed the classified specifics of how billions of people’s data and personal details were being recorded and processed by an intergovernmental surveillant assemblage. These two moments are connected by more than time. They are both making radical moves in debates around citizenship, though one is obvious while the other remains furtive. In Italy, this debate is heavily ethnicized and racialized. According to jus sanguinis, to be a legitimate part of the Italian body politic is to have Italian blood running in your veins. Italian meant white. Italian meant ethnic- Italian. Italian meant Catholic. -
SURVEILLE NSA Paper Based on D2.8 Clean JA V5
FP7 – SEC- 2011-284725 SURVEILLE Surveillance: Ethical issues, legal limitations, and efficiency Collaborative Project This project has received funding from the European Union’s Seventh Framework Programme for research, technological development and demonstration under grant agreement no. 284725 SURVEILLE Paper on Mass Surveillance by the National Security Agency (NSA) of the United States of America Extract from SURVEILLE Deliverable D2.8: Update of D2.7 on the basis of input of other partners. Assessment of surveillance technologies and techniques applied in a terrorism prevention scenario. Due date of deliverable: 31.07.2014 Actual submission date: 29.05.2014 Start date of project: 1.2.2012 Duration: 39 months SURVEILLE WorK PacKage number and lead: WP02 Prof. Tom Sorell Author: Michelle Cayford (TU Delft) SURVEILLE: Project co-funded by the European Commission within the Seventh Framework Programme Dissemination Level PU Public X PP Restricted to other programme participants (including the Commission Services) RE Restricted to a group specified by the consortium (including the Commission Services) CO Confidential, only for members of the consortium (including the Commission Services) Commission Services) Executive summary • SURVEILLE deliverable D2.8 continues the approach pioneered in SURVEILLE deliverable D2.6 for combining technical, legal and ethical assessments for the use of surveillance technology in realistic serious crime scenarios. The new scenario considered is terrorism prevention by means of Internet monitoring, emulating what is known about signals intelligence agencies’ methods of electronic mass surveillance. The technologies featured and assessed are: the use of a cable splitter off a fiber optic backbone; the use of ‘Phantom Viewer’ software; the use of social networking analysis and the use of ‘Finspy’ equipment installed on targeted computers.