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  2. February 2016

February 2016

EU and US Release Details on Trans-Atlantic Data Transfer Deal

American and European officials released details about a new trans-Atlantic data transfer agreement, prompting a new round of debate about how companies like Google move digital information between the two regions. The pact is the formal version of an agreement hashed out in early February after often-bitter negotiations, revamping the rules for how technology giants like Facebook and other conglomerates like GE look up, collect and manage online data, including social media posts, search queries and e-commerce purchases. As part of the new agreement — known as the EU-US Privacy Shield — companies will face stricter rules over how they move people’s digital data from the European Union to the United States.

American officials have also agreed to new limits on the powers of the country’s intelligence agencies to gain access to Europeans’ online information when it is transferred to the United States. The European Commission, the executive arm of the European Union, also gave its official backing after it released a so-called adequacy decision, an official text required to turn the data transfer pact into law. Though the agreement still needs to be ratified by European Union member states, that is not expected to be contentious and is likely to happen in the coming months. Europe’s approval, however, was somewhat offset by a separate document also released Feb 29, in which the European Union called on the United States to bolster its domestic privacy rules. Federal efforts to offer new privacy protections have so far produced few new controls for American consumers.

“Privacy Shield” proposed to replace US-EU Safe Harbor, faces skepticism

The European Commission has published details of its transatlantic "Privacy Shield" agreement, which is designed to ensure that personal information of citizens is protected to EU standards when it is sent to the US—even though it would appear that the National Security Agency will continue to carry out bulk collection of data under the new pact. The new deal replaces the earlier Safe Harbour framework, which was struck down by the Court of Justice of the European Union (CJEU) following a complaint by privacy activist Max Schrems.

An accompanying Privacy Shield FAQ released by Brussels' officials explained that there are four main elements. According to the commission, the new agreement will "contain effective supervision mechanisms to ensure that companies respect their obligations, including sanctions or exclusion if they do not comply." The commission added that "for the first time, the US government has given the EU written assurance from the Office of the Director of National Intelligence that any access of public authorities for national security purposes will be subject to clear limitations, safeguards and oversight mechanisms." That pledge is an attempt to address the key concern raised by the CJEU—the NSA's bulk collection of EU citizens' personal data. According to a letter from Robert Litt, General Counsel of the Office of the Director of National Intelligence, there are six situations in which the NSA will be explicitly allowed to use data collected in bulk, including for undefined "counter-terrorism" purposes. However, as Schrems pointed out, in its judgment the CJEU wrote: "Legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter." It would appear, though, that the NSA's "assurance" still allows "access on a generalised basis," potentially putting the entire Privacy Shield agreement at risk if and when a legal challenge is brought to the EU's highest court.

Congress Warily Eyes Apple-FBI Standoff

As the fight heats up between Apple and the Justice Department over investigators’ push for access to a locked smartphone, Congress has waded in warily to see if it can broker a compromise or bolster the argument of either side. But lawmakers say Congress is unlikely to muster a solution anytime soon, because of the presidential election and sharp divisions between lawmakers who stress privacy and those who prioritize national security when it comes to encryption. House Intelligence Committee Ranking Member Adam Schiff (D-CA) said that because “Congress is so dysfunctional,” he doesn’t believe it has the capacity to resolve this dispute. “If it comes down to Congress actually having to do something, we probably can’t do it,” Ranking Member Schiff said. He cited difficulties Congress has had recently in passing even far less controversial tech-related bills.

It’s Unlikely Congress Could Pass an Encryption Workaround Bill

The battle between Apple and the Federal Bureau of Investigation over whether the tech giant should break into a locked iPhone has thrust the conversation about encryption onto the national stage. Congress looks set to get involved, but it’s unlikely that any bill requiring companies to help law enforcement get around encrypted data will gain traction.

Encryption is used in practically every service online. Legislation to break into it “is going to put a chilling effect on commerce and speech, because no one’s going to want to send information or transact online if they don’t think that their transactions are secure,” said Bijan Madhani, privacy counsel at the Computer & Communications Industry Association. There’s also the issue (as always) of pure politics. American Civil Liberties Union Legislative Counsel Neema Singh Guliani likened the encryption debate to the controversy that swirled around the National Security Agency’s bulk data collection program. Then, as now, both Republicans and Democrats have raised questions. “In Congress, this issue looks different from any other that we’ve seen,” Guliani said. “What we’re saying [is that] libertarians from the Republican party and Democrats stand together on this issue.” While lawmakers have discussed the tension between private sector encryption and law enforcement needs for at least a year, the Apple case has brought a new urgency to the problem.

‘Wasteland’ Revisited

A Q&A with former Federal Communications Commission Chairman Newton Minow.
Former FCC Chairman Newton Minow only served as FCC Chairman for two and a half years, but he may be the TV industry’s most famous (or infamous) regulator. That reputation is due to his “vast wasteland” speech at the 1961 National Association of Broadcasters convention in Washington. That speech, and that phrase, has remained stuck in the public consciousness—and in broadcasters’ collective craw—for more than half a century. But Minow was also instrumental in early testing of the pay-TV business and creating noncommercial television, and advocated for a nonpolitical commission, something that seems a distant memory at a time when political fissures appear to widen with every big vote at today’s FCC. And he is considered one of the founding fathers of televised political debates. A member of the board of directors of the Commission on Presidential Debates, Minow has once again plugged back into the media zeitgeist in an election year unlike any other. He has long been a driving force in the creation and refinement of televised presidential debates—those between the eventual party choices, not the current round of nominee debates that have become the center of so much media attention of late. Minow calls these initial scrums “deplorable,” though he does see promise in the town hall format.

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