25 October 2015

Safeguards and Oversight of U.S. Surveillance Under Section 702

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union invalidated the US-EU Safe Harbor agreement on the basis that the European Commission had failed to sufficiently assess the protection of personal data of Europeans under the U.S. data protection regime. The Court alluded to U.S. surveillance activities under the PRISM program authorized by Section 702 of the Foreign Intelligence Surveillance Act, and appeared to assume U.S. law permits mass surveillance of Europeans with few limits, little clarity, and no opportunity for redress. However, the Court did not actually review or assess the applicable legal authorities, remedies, or array of checks and balances, safeguards, and independent oversight.  If it had done so, it would have found numerous overlapping controls that assure that such surveillance is neither massive nor indiscriminate, but instead targeted to specific individuals and limited purposes, and provides legal remedies for Europeans. Indeed, prior to the scheduled expiration of the 702 program in 2017, U.S. congressional oversight committees will likely be comparing whether privacy safeguards in place for similar foreign programs are as effective as those of Section 702.

Significantly, the independent Privacy and Civil Liberties Oversight Board reviewed surveillance under Section 702 and found: “[T]the Section 702 program is not based on the indiscriminate collection of information in bulk. Instead the program consists entirely of targeting specific [non-U.S.] persons about whom an individualized determination has been made.” Key safeguards and controls include…

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