On July 16, 2020, the Court of Justice of the European Union (CJEU) invalidated the EU-U.S. Privacy Shield in the Schrems II case. In an article written by Georgia Tech professor and Alston & Bird Senior Counsel Peter Swire with co-author Kenneth Propp, entitled ‘After Schrems II: A Proposal to Meet the Individual Redress Challenge’, the authors argue that the core fundamental rights concerns expressed by the CJEU must be addressed in order for the U.S. and the EU to negotiate a replacement agreement. In particular, the article makes a preliminary proposal to address CJEU concerns that U.S. surveillance law safeguards lack essential equivalence to EU safeguards. One particular concern, and the focus of Propp and Swire’s article, is that the U.S. lacks an “effective and enforceable” right of individual redress.
The article argues that any attempt to successfully address the perceived deficiency must have two dimensions:
- A credible fact-finding inquiry into classified surveillance activities in order to ensure protection of the individual’s rights, and
- The possibility of appeal to an independent judicial body that can remedy any violation of rights should it occur.
In respect of the first of these dimensions, Propp and Swire tentatively recommend that the fact-finding inquiry could be conducted by existing U.S. Privacy and Civil Liberties Officers (PCLOs) within the intelligence community, or alternatively by the U.S. Privacy and Civil Liberties Oversight Board (PCLOB).
In respect of the second dimension, Propp and Swire suggest that the obvious and appropriate path for an appeal from the fact-finding stage would be to the U.S. Foreign Intelligence Surveillance Court (FISC). To assure standing for such appeals, a mechanism similar to the one utilized under the U.S. Freedom of Information Act (FOIA) appears feasible.
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