In an article published today, Senior Counsel Peter Swire challenges the factual basis for the Advocate General’s recent opinion in the so-called “Schrems case” against the E.U.-U.S. Safe Harbor framework. Thousands of U.S. businesses rely on the Safe Harbor framework in order to support the transfer of data from the European Union. As previously discussed on this blog, Maximilian Schrems challenged Safe Harbor by arguing that regulators in each E.U. country should be permitted to make their own determination to accept or reject the framework. Last month, Advocate General Yves Bot recommended that the European Court of Justice accept Schrems’ argument. If the European Court of Justice adopts the Advocate General’s opinion, U.S. and European businesses will no longer be able to rely on Safe Harbor as a standard framework enabling data transfers out of the European Union. Swire’s article challenges the Advocate General’s opinion by explaining how the opinion is based on a fundamental misunderstanding of U.S. intelligence law and its evolution since the Edward Snowden leaks of 2013.
