EU-US adequacy negotiations
Insightful posts to understand the current state of affairs (@TC_IntLaw)
EU-US are undergoing negotiations to comply with Schrems II
US position
– the assessment on whether US #surveillance laws protections are essentially equivalent to EU’s laws should distinguish how the gov access to data
a) indirect or compulsory access: gov compels electronic comm service providers to transmit data or access to networks (FISA 702)
b) direct or non-compulsory access: gov collects data directly by its own means (EO 12333). Crucially, the NSA can access the underwater cables before they arrive in the US and become subject to the FISA
According to US: adequacy/essential equivalence assessments should be carried out only in the first type
Arguments
– EU DP law does not apply to direct access to data by intel agencies for national security purposes, when such access does not impose data processing obligations on private entities.
– Inconsistency with #Privacy International (CJEU 2020)
Counterarguments
– failure to consider the applicability of #ECHR
– similar arguments by US gov in previous submissions, and rejected
– no sense in safeguarding data once it reached US (FISA 702) if data can be intercepted before (e.g. subm cables by EO 12333)
Squaring the Circle? International Surveillance, Underwater Cables and EU-US Adequacy Negotiations (Theodore Christakis, European Law Blog) Part 1 (12.04.2021) and Part 2 (13.04.2021)
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