We Shouldn’t Allow A New Super Secret Surveillance Court Cover Up The Civil Liberties Problems Of The Old Super Secret Surveillance Court
from the not-fixing-the-problem dept
For years now we’ve been covering the big ongoing fights between the US and the EU regarding the transfer of user data across the Atlantic. The main issue was that due to somewhat different data protection/privacy laws between the EU and the US, the two keep trying to work out a “deal” that allows (mostly) US companies to stores data from EU users on servers in the US. This transatlantic data flow agreement is important. It would be difficult for many US companies to offer services to EU citizens without it.
But it’s been a fucking mess for over a decade. Almost entirely because of US surveillance programs.
The agreements to handle this have gone by various names, starting with the EU/US Privacy “safe harbor,” and then later the “Privacy Shield.” In both cases, those agreements were eventually rejected by the EU Court of Justice, almost entirely because of the very big problem of the US’s surveillance activities, mostly overseen by the secretive FISA Court. (As a side note, EU government surveillance is in many ways worse than the US’s similar surveillance efforts, but somehow that never comes up in any of these discussions… but, I digress…).
Back in the fall of 2022, the EU and the US excitedly announced a new agreement to replace the old rejected agreements. Yet, as we pointed out at the time, unless they agreed to stop NSA surveillance on basically all electronic communications outside of the US, it wasn’t clear how it would actually fix the underlying reason these agreements keep getting thrown out.
As Politico recently detailed, the way the US has “fixed” this in the new privacy agreement… is to set up an entirely new, entirely secretive surveillance court. What could go wrong?
Officially known as the Data Protection Review Court, it was authorized in an October 2022 executive order to fix a collision of European and American law that had been blocking the lucrative flow of consumer data between American and European companies for three years.
The court’s eight judges were named last November, including former U.S. Attorney General Eric Holder. Its existence has allowed companies to resume the lucrative transatlantic data trade with the blessing of EU officials.
The details get blurry after that.
The court’s location is a secret, and the Department of Justice will not say if it has taken a case yet, or when it will. Though the court has a clear mandate — ensuring Europeans their privacy rights under U.S. law — its decisions will also be kept a secret, from both the EU residents petitioning the court and the federal agencies tasked with following the law. Plaintiffs are not allowed to appear in person and are represented by a special advocate, appointed by the U.S. attorney general.
That doesn’t seem that great.
Also, this new quasi-court has some other oddities, including that it is open to Europeans, but not Americans.
U.S. residents who suspect they are under improper surveillance cannot go to the Data Protection Review Court. Under U.S. law, they can go to a federal court — but only if they can show a concrete wrong or harm that gives them legal standing, which presents a Catch-22, since they can’t prove what they don’t know.
Adam Klein, former chair of the Privacy and Civil Liberties Oversight Board, an independent agency within the Executive Branch, pointed to former Trump campaign adviser Carter Page as the type of individual who could have benefited from a mechanism like the DPRC. Page was surveilled by the FBI during the 2016 presidential election as part of a probe into Russian influence in U.S. politics — and Justice Department inspector general investigation later found a swath of errors and material omissions in the documents used to seek the surveillance warrant. An FBI lawyer ultimately pleaded guilty to altering a document used for that warrant.
But Page himself had little recourse. He filed a lawsuit in 2020 seeking $75 million from the government and several current and former FBI and DOJ officials for violating his constitutional rights. A federal judge called the FBI’s conduct “troubling,” but ultimately found the law bars Page from pursuing a civil lawsuit. An appeal is pending.
Now, with the DPRC in place, “We’re in an odd place when non-residents have easier access to a place to raise their concerns about U.S. government surveillance than Americans do,” said Klein.
But even Europeans have no clear path to using this court that is so secretive no one’s even entirely sure if it’s actually opened for business.
According to the executive order, getting before the DPRC starts with a long preliminary process: a citizen complaint first has to shuttle between an EU data protection official and the U.S.’ Office of the Director of National Intelligence, which decides whether there was a civil rights violation from the data collection.
Regardless of the results, the response to the initial complaint will neither confirm or deny that the EU resident was under U.S. surveillance. The response will say there either was no violation found, or that there was a violation found and that the U.S. government took appropriate steps to resolve it. It won’t specify which one.
The EU resident can then appeal directly to the DPRC in America, — with the assistance of a court-appointed special advocate. That advocate will have the details from the underlying ODNI decision — although that decision remains off-limits to the person making the appeal.
“What are you going to write in the appeal? Nothing, because you don’t know what the answer is,” Schrems said. “As a lawyer, it’s really hard that you’ll ever win a case by saying ‘I appeal’ without saying what your problem is with the decision.”
While this seems to be a setup designed to make bureaucrats on either side of the Atlantic pretend they’re doing something useful, it’s hard to see how it will actually solve the underlying problems. Which, again, are because of NSA surveillance rubber stamped by the other secretive court, the FISA Court.
Stacking up more secretive courts does not seem like a real solution. Fixing overly broad, mass surveillance is.
But apparently that’s off the table.
Filed Under: data protection review court, eu, nsa, privacy shield, secrecy, surveillance, transatlantic data flows
Comments on “We Shouldn’t Allow A New Super Secret Surveillance Court Cover Up The Civil Liberties Problems Of The Old Super Secret Surveillance Court”
It sounds like we could just attach an extra room on my mothers house, and keep it stocked with kittens. It would be more useful, and none (except my mother) would even know the difference.
The proposed law is not justice.
Source
Here are some links if anyone wants to look at the official website for more info.
https://www.justice.gov/opcl/redress-data-protection-review-court
https://www.justice.gov/opcl/executive-order-14086 – The court was set up under the authority of Section 3 of EO 14086.
https://www.justice.gov/opcl/opcl-support-dprc
https://www.justice.gov/opcl/dprc-resources
Here is an overview, linked from the FAQ on the resources page:
https://iapp.org/resources/article/web-conference-eu-u-s-data-privacy-framework-new-independent-binding-redress-mechanism/
Why Didn't I Think Of That
That’s the perfect answer. A court that’s so secret, that nobody really knows if it exists or not.
I just don’t see why the EU would ever agree to this.
"Who is going to stop us?"
I assumed that the previous super secret court (and the mercenaries and the torture program and the war on false pretenses…and…and…and…) were all based on the US being an oligarchy now that doesn’t care about civil rights or, really, pretending to be a democracy anymore, and who’s going to stop us? The Hague? There’s a law for that.
Oh and we still don’t have access to the full torture report.
So when the federal government decides to create another secret court, I assume the reason they can is because the resistance hasn’t figure out a way to sabotage supply to the courthouse. Nothing short of such efforts are going to stop them.
This whole thing is stupid, but this part is mindbogglingly stupid. Not only are they supposed to decide whether to appeal without knowing the details of of the decision, they don’t even get to know in general whether the ruling was in their favor before deciding whether to appeal?
NSA, fucking just stop.
Companies, leave the goddamn data in Europe, jesus christ what the actual fuck. Why? Why does it need to be anywhere else unless a user sends it?
Re:
Anonymous Coward,
You are absolutely corrct on that. The US government uses foreign espionage agencies, often British or Israeli to do things that are illegal for them to do themselves. The US military is counting on British espionage agencies like MI6 and corporate espionage agencies like they did in the past with Cambridge Analytica and the Steele Dossier to influence elections in America. AOL.com and YahooNews have British Tabloid Guardian and Telegrap plants on their sites to scoop up American data.
The Steele Dossier and Cambridge Analytica should have been a wake up call to every American not to click on any British sites, regarsless of how much you might hate Trump, it is just the fact that they think that they have a right to do it, and believe that we are their slaves, and they never got over 1776.
Re: Re:
My comments are being hacked and filled with what appears to be fat finger typos to try to duscredit me, and this comment above was also edited by a hack that removed a very major statement that said “U.S. DoD claims to be paying $13 billion to Israelis to read the Torah! Lol! More like aying the Israelis $13 billion for espionage!
I am sick and tired of the WTO, EU, NATO, WHO, BIS, & UN dictating to America and the world. Of course America plays a large role in this to other countries, which is typically the international focus. Journalists in other countries seldom criticize their own government, and blame everything on America, whoch is the international plan for the governments around the world to do, evidenced by their actions. They are all opposed to the constitution of the United States because it is superior to every countries legal structure, but it is not followed by our country’s own governments, federal, state, county, and local, or by corporations and law enforcement.
These are the topics permissible and prefered to be the topics of discussion by the American establishment, and by most other dountries:
DTE, CRT, immigration, LGBTQ, Abortion, Climate Change, Russia, Ukraine, Iran, Venezula, China, & Taxes,
It is irrelevant which side of the argument of any of those topics that you are on, as long as you are not talking about the following topics:
High Crimes, Bribery, Treason, Organized Crime, Crimes Against Humanity, Medical Fraud, Financial Fraud, Economic Fraud, Academic Fraud, Scientific Fraud, Media Fraud, Corporate Fraud. & SYSTEMIC CORRUPTION!
Re: strange comment
The point of the article is that the EU is allowing US intelligence services full access to EU data. This is indeed strange but can likely be explained by substantial lobbying efforts by US tech companies and possibly also intelligence services. And perhaps some bribery as well.
Is it just me?
Or is this court fairly close to being the “Democratic People’s Republic of … court?”
'I don't get it, why doesn't the public trust us?!'
Because nothing says ‘We’re operating above board and following the law’ like a court where anything beyond that it probably exists is kept shrouded in mystery and even if someone stumbles upon the magical phrases that grant them access to bring their issue before the court they won’t be told squat regardless of the ruling.
secret squirrel stuff
with all the secret squirrel shit. even the squirrel doesn’t even know the secret!
your government(s) at work! just give us $$$ and don’t question what it’s for! and don’t forget sheeple. we need all your data and your not allowed to know what we do with it!
The British are Coming!
Stop the British Invasion! Same old same old! Can’t get rid of them! They refuse to accept 1776! Steele Dossier Cambridge Analytica, the persistence continues by the Europeans demanding control over US policy and corporations! It is almost every day that Europeans are dictating US domestic policy, foreign policy, environmental policy, trade policy, corporate policy to American military, government, corporations, and media. The British and the Germans are the worst offenders as usual!
Things always happens in threes, so they say. You know what that means for the British and Germans right!?
Elon Musk has imported South African Apartheid culture to America. Musk has been on a rampage against all minority groups in America. It always starts out that way, but it ultimately targets everyone. Silicon Valley has followed suit. They intend to silence everyone except for Generative Artificial Intelligence Chatbots that they create and control. So the internet will be more like tv or radio but geared toward internet users searches rather than scheduled programs. So, in the end, it was all just a total waste of resources. ” Did they expect us to treat them with any respect?!” – Pink Floyd Fletcher Memorial Home for Incurable Tyrants.
Double secret secret courts?
I doubt they intended this, but I think the Feds and the EU have just out-lampooned National Lampoon’s Animal House and Dean Wormer’s “double secret probation.”
But it's a secret!
Secret Laws
Secret Interpretations of Laws
Secret Courts
Secret Warrants
Secret Court Orders
Secret Arrests (in the middle of the night)
Secret Trials
Secret Evidence (not made available to the defense)
Secret Convictions
Secret Prisons
Secret “enhanced interrogation” programs
Gee, it sounds like we’ve become everything we were fighting against in the previous century.