Worldwide: U.S. Congress Passes The Judicial Redress Act, But Does It Provide Effective Redress?


In an uncharacteristically swift move, the United States Congress passed the Judicial Redress Act ("Act") on 20 October 2015. The Act proposes to extend safeguards implemented under the Privacy Act 1974, and, if brought into force, would allow non-U.S. citizens to bring civil actions against United States agencies in certain circumstances. To become law, the Act must now be passed by the Senate and signed by the president.

Scope of the right

At first glance, the Act appears to create a significant new right for non-U.S. citizens to bring actions against United States agencies and to obtain civil remedies arising out of the use of personal information. However, on closer reading, important distinctions emerge between the right created by the Act and the rights granted to United States citizens under the Privacy Act of 1974. The key limitations of the right created by the Act are that:

  • Actions may only be brought by natural persons residing in a "covered country". A country or regional economic integration organization (for example, the European Union) may only become "covered" by designation of the attorney general, with the concurrence of the secretary of state, the secretary of the treasury and the secretary of homeland security. One of two things must occur for the designation to be made: (i) the country or regional organization concerned must have entered into an agreement with the United States that provides for appropriate privacy protections for information shared for the purposes of preventing, investigating, detecting or prosecuting criminal offenses; or (ii) the attorney general must determine that the country has effectively shared information with the United States for the above purposes.
  • There are two legal grounds on which an action can be brought, but the categories of agencies against which these actions can be brought differ. The first action may be brought against "agencies", such as the FBI or NSA, only where an agency has "intentionally or wilfully disclosed" an individual's personal information to a person or agency without that individual's consent. This prohibition on disclosure is, however, subject to several exceptions, including where disclosure is to another agency "for criminal law enforcement activity where the activity is authorised by law". The second action may be brought where an agency fails to amend a record or refuses to provide access to a record, and may only be brought against a "designated Federal agency or component". Such designated federal agencies are determined by the U.S. attorney general with the concurrence of the head of the relevant agency or the agency to which the component belongs.
  • The legal bases set out above can be relied on when an action arises in respect of a "covered record". This term includes several types of information, in particular that related to education, financial transactions, criminal history, etc. However, a record will only qualify as a "covered record" where it has been transferred by a public authority of or private entity within a country which is a "covered country" as outlined above, and is transferred to an agency for the purposes of preventing, investigating, detecting or prosecuting criminal offenses.

How will the Act impact on relations with the European Union?

A key element in the Court of Justice of the European Union's reasoning in Maximillian Schrems v Data Protection Commissioner (C-362-14) was that once data were transferred to the United States and in the possession of intelligence agencies, data subjects in the EU would have no administrative or judicial means of redress, "enabling, in particular, the data relating to them to be accessed and, as the case may be, rectified or erased."

On the face of it, the Act does appear in some way to address the concerns raised by the CJEU. As outlined above, however, the two causes of action available under the Act are exercisable against different classes of United States agencies, creating a patchwork of legal remedies. Further, there are significant hurdles to overcome and thresholds to meet before an individual could bring an action, and redress is available only in limited circumstance and for narrow classes of data.

There are also practical barriers to individuals exercising their rights. The first is that, given the inherently secretive nature of intelligence services, it is doubtful whether individuals will know that their data is held, and they will therefore be unaware that they have the potential to exercise their rights. Secondly, the rights granted by the Act may only be enforced by individuals with sufficient resources to bring an action in the United States.

Given the limited scope of personal information that falls within the Act, it appears that the rights are premised on countries, regional economic integration organizations, or private entities first transferring data of individuals to the United States in contravention of their own laws. Further, it is unclear whether the Act will apply to data provided by private entities which are based outside of the United States, but which have offices inside the country. It seems doubtful, however, that intelligence services will cease making requests to United States entities for data held by them both within the country and abroad.

In the EU, the fallout from the CJEU's decision continues to develop. On 20 October, the Irish High Court requested that Ireland's office of the data protection commissioner investigate whether Facebook Inc. improperly shared personal data with the United States National Security Agency. This development was not surprising, given the CJEU's ruling.

While the Act has been passed quickly by the United States Congress, it appears to be largely form over substance. It remains to be seen whether the law will have any effect on the on-going negotiations regarding the U.S.-EU Umbrella Agreement or "Safe Harbor 2.0".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.