The EU-U.S. Privacy Shield has come under scrutiny once again after 17 civil society
organisations (the Coalition) sent a letter to the European Commissioner for
Justice and Consumers.
The 28 February 2017 letter raises the issue as to the breadth
of Section 702 of the FISA (Foreign Intelligence Surveillance Act)
Amendments Act (FAA), which provides authority for the United
States government's PRISM and UPSTREAM surveillance programmes.
The Coalition argues that these programmes violate international
human rights standards, as they require internet companies to
capture and turn over to the government communications within very
broadly defined categories.
Section 702 surveillance powers were the focus of the Court of
Justice of the European Union (CJEU) decision that repealed the 'safe
harbour' programme in the United States, and the
Coalition's letter recommends that the FAA must be amended in
order to comply with that decision. The Coalition argues that, in
the meantime, the Commissioner must suspend the Privacy Shield.
Though officially approved by the European Commission, the Privacy
Shield continues to face criticism and calls for its suspension.
Human rights organisations have argued that the Privacy Shield
still fails to comply with CJEU requirements, noting fears that it
is insufficient to ensure protection of the rights of digital
users; that it will perpetuate human rights violations; and that it
will undermine trust in the digital economy. The Coalition
reiterated these arguments in its recent letter.
The Coalition recommends that the FAA's revisions include
the breadth of definitions, the amount of data retained in
surveillance databases, the number of innocent individuals that can
be 'targeted', and the lack of limits on dissemination of
data between agencies and the United States' international
partners. At present, Section 702 authorises collection provided
that a "significant purpose" of collecting the data is in
order to obtain foreign intelligence information. This has served
as a loophole for the FBI to collect data without a warrant for
criminal investigations. Section 702 is broad enough to allow any
non-U.S. person outside of the United States to be targeted in the
likelihood that they may reveal foreign intelligence information.
The NSA recently targeted a pro-democracy activist in New Zealand
under the PRISM programme on the basis of erroneous claims by the
New Zealand government that this individual had been planning
Section 702, along with several other sections of the FAA,
expires on 31 December 2017. The U.S. Congress has twice voted to
reauthorise the law, with the most recent reauthorisation occurring
in 2012. In May 2016, the U.S. Congress began debating whether to
reauthorise Section 702 a third time. A number of advocacy groups
in the United States believe that Section 702 should be allowed to
expire on 31 December 2017, and have created a countdown to
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The fourth and final part of our mini-series on the draft ICO guidance on Consent, published on 2 March 2017, focuses on the practical impact the GDPR (General Data Protection Regulation) will have on how your organisation records and manages consent.
In light of the much anticipated ICO draft GDPR (the General Data Protection Regulation) Consent Guidance being published yesterday, 2 March 2017, we will be running a mini-series on the guidelines under consultation and the impact the GDPR will have on the much vexed position of consent and the impact on your business.
The first of our four discussions on the ICO guidelines for Consent will focus on the meaning of consent under the GDPR (General Data Protection Regulation) and how this change enhances the previous law on consent to data processing.
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