United States: Did U.S. Executive Order Signal Trouble For EU Citizen Privacy Rights?

As President Trump settles into office, his administration has issued a flurry of executive orders aimed at reshaping the U.S. government. One order in particular may have a broader impact on global business than originally thought, particularly as it relates to the transfer of personal data from EU citizens to the United States. 

Essentially, President Trump's efforts to withdraw privacy protections for non-U.S. citizens are coming in direct conflict with recent efforts by the European Union to strengthen privacy protections for its citizens, no matter where in the world they travel. 

This clash of ideologies threatens an already shaky data transfer relationship between the EU and the U.S. and could lead to problems for businesses and law enforcement alike.

The Order and its provisions

On January 25, President Trump signed his "Executive Order: Enhancing Public Safety in the Interior of the United States." This Order principally addressed the withholding of federal funds from so-called "sanctuary cities"— U.S. cities that have refused to deport or respond to illegal aliens pursuant to federal law. But a closer review of the Order may raise separate concerns for global and foreign businesses. 

Section 14 of the Order states:

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

This section directly references the Privacy Act of 1974. This Act was established to "balance the government's need to maintain information about individuals with the rights of individuals to be protected from unwarranted invasions of their privacy stemming from federal agencies' collection, maintenance, use, and for understanding its remedial purposes." 

The Act focused on four basic policy objectives:

  • To restrict the disclosure of personally identifiable information maintained by government agencies.
  • To grant individuals increased rights of access to information government agencies held about them.
  • To grant individuals the right to amend inaccurate, irrelevant, untimely, or incomplete information maintained by government agencies.
  • To establish "fair information practices" that required government agencies to comply with statutory norms for the collection, maintenance, and dissemination of personally identifiable information. 

Although the Privacy Act of 1974 as a matter of law only applied to U.S. citizens and Lawful Permanent Residents, a 2007 policy, issued by the DHS under then-President Bush, extended the privacy protections of the Privacy Act to visitors to the United States as well as individuals who were in the country illegally. President Trump's Order reversed this policy. While the term "Agencies" is not defined in the Order (or the codes referenced in the Order), the broadest reading of the Order appears to remove Privacy Act protections from all foreign nationals in the United States who deal with a governmental, administrative, or law enforcement agency of the federal government. By removing these protections, illegal aliens and authorized visitors alike may have their personal information collected and shared throughout the U.S. government without regard to the protections afforded by the Privacy Act of 1974.

The Order focused its effects on so-called "potentially removable aliens." The bar for being considered a potentially removable alien is low. Any foreign national charged with a criminal offense (not necessarily convicted), who made a willful misrepresentation in connection with any official matter (not necessarily limited to immigration matters), who abused any program related to the receipt of public benefits, or who is judged a risk to public safety by any immigration officer can be considered a potentially removable alien. 

The Order includes a section that requires all government agencies to "[m]ake use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States," potentially increasing U.S. government sharing and distribution of personally identifiable information belonging to potentially removable aliens. In conjunction with the Order's removal of Privacy Act protections for all non-citizens or lawful permanent residents, concerns have arisen as to the protections afforded to personally identifiable information of foreign nationals in the United States. 

The Order's effect

The Order raises concerns around potential conflicts between the protections afforded to EU citizens under the General Data Protection Regulation, the Privacy Shield (and similar legislation), and the new laws and practices of the U.S. 

The GDPR establishes the privacy rights and protections afforded to citizens of the European Union. These protections run with the individual and thus extend to information collected from EU citizens that is subsequently moved outside of the European Union. 

Among other provisions, the GDPR: 

  • Provides broad protection for personally identifiable information collected from EU citizens.
  • Requires that such information be accessible for review and potential amendment where incorrect or misleading. 
  • Limits how such information can be collected and shared (even amongst law enforcement entities). 

The most recent changes to the GDPR (set to take effect in March 2018) have been interpreted to extend these protections very broadly — even to information collected wholly outside of the EU by entities that have directed their businesses to EU citizens. 

Because President Trump's order potentially applies to any non-citizen or lawful permanent resident — including EU citizens who are in the United States — any EU citizen's personally identifiable information collected by an agency (including information found on passports or other identification collected by Border Patrol) would no longer be subject to Privacy Act protections. It could potentially be collected, viewed, and disseminated without regard to those protections. And EU citizens may not be able to view such personally identifiable information collected from such agencies or have any recourse to correct or supplement any incorrect, misleading, or missing information. 

The international and business implications of this scenario could be significant. The United States, Europe and Switzerland recently negotiated and enacted the EU-U.S. Privacy Shield, and its closely related U.S.-Swiss Privacy Shield, as a means of harmonizing U.S. privacy practice (especially in the law enforcement arena) with the protections afforded under European law. The Privacy Shield framework was negotiated as a means to make digital commerce between the US and Europe easier, while ensuring that strict European privacy protections under the GDPR were met. 

Despite their implementation, speculation has grown recently as to the sufficiency of these Privacy Shields. Challenges have been filed in the EU by groups concerned that the protections afforded by the Privacy Shields did not go far enough to protect European citizen's personal information from the US government's data monitoring and collection efforts. Up until now, the European Commission has rejected many of the criticisms of the structure of the Privacy Shield agreements based on assurances they had received from President Obama's administration regarding how collected information would be used and distributed. But President Trump's Order may undermine those assurances. The Trump Administration's emphasis on immigration reform seems to telegraph a very different relationship with EU privacy concerns and, perhaps, an even quicker end to the Privacy Shield framework.


While the Order itself may not have stricken protections afforded by the Privacy Shields, concerns with this Order and other statements and actions from the new administration could hasten actions to suspend the Privacy Shield. Concerns are heightened by statements like those from a spokesperson for the European Parliament on data protection regulation suggesting that President Trump's Order may have already breached another privacy agreement between U.S. and European law enforcement (the EU-US Umbrella Agreement). 

Because the Executive Order is not legislation and does not come with clear policy guidelines, definitions, or messaging, and because the new administration has been in power for less than a month, it is hard to put this Order into context or to interpret its full ramifications or legal effects. But it is a clear shift from the position of prior administrations. That shift has already been questioned by one official as a possible breach of one EU-US privacy agreement and may run afoul of EU legislation set to take effect next year. This may act to make an already shaky data transfer relationship between the EU and the US even more uncertain — leading to problems for businesses and law enforcement alike. 

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 Mondaq.com.

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions