STLR Link Round Up – October 9, 2015

EU Court of Justice Invalidates US Safe Harbor Data Agreement

In a sweeping decision, the European Union’s highest court declared a Safe Harbor agreement between the European Union and the United States invalid in the case of Maximillian Schrems v Data Protection Commissioner. Using documents leaked by Edward Snowden in 2013 to prove his case, Austrian citizen Maximillian Schrems utilized his status as a Facebook user to argue successfully that the law and practices of the United States do not meet the requirements set forth for privacy protection under the Safe Harbor agreement when data from Facebook Ireland was transmitted to its American counterpart.

In addressing the plaintiff’s appeal from the Irish Data Commissioner, the Court of Justice stated that United States law carved elevated national security, law enforcement, and the public interest over the requirements of the Safe Harbor provision, and thus was “bound to disregard, without limitation, the protective rules laid down by that scheme where they conflict.” Thus legislation in the United States permitting the authorities to have access to data transmitted from the European Union on a generalized basis compromised the fundamental right to respect for private life, thus invaliding the Safe Harbor agreement.

The repercussions of this decisions are expected to be massive, with an estimated 3,000 American companies being affected by the decision spanning several industries. EU countries are now required to investigate privacy complaints previously falling under the Safe Harbor agreement independently, and will retain the right to ban individual U.S. companies from transferring data in the future.

Still, this is not likely to be the last challenge to American data privacy practices from a European challenger to appear before the Court of Justice. At the heart of the case is a European conception of privacy rooted in the Charter of Fundamental Rights of the European Union which guarantees the “right to respect for privacy and family life” as well as the “right to the protection of personal data.

Federal Judge Rejects Government Plea to Decrypt Cellphone

A Brooklyn federal magistrate sharply criticized the government’s failure to act on the issue of encryption while denying an order to decrypt an Apple iPhone, stating that “Congress has done nothing that would remotely suggest an intent to force Apple, in the circumstances of this case, to provide the assistance the government now requests.”

The Electronic Frontier Foundation (“EFF”), a privacy and data security advocacy organization, commended Magistrate Judge James Orenstein for questioning the government’s ability to force Apple to decrypt a device using the All Writs Act. The EFF pointed out that it may not even be possible for Apple to decrypt the device, a possibility the government seemingly ignored, and highlighted Judge Orenstein’s statement that Apple as a private sector company is “free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement.”

Wikileaks Release of TPP Intellectual Property Rights Chapter

For the second time in as many years, Wikileaks has released a significant portion of the Trans Pacific Partnership, a trade agreement between twelve countries in the Pacific rim intended to lower trade barriers. The leaked chapter hosted on Wikileak servers details the intellectual property law implementation agreed to by the signatory countries, some of which have raised alarm.

Notably, the treaty gives signatories the ability to “curtail legal proceedings if the theft of information is ‘detrimental to a party’s economic interests, international relations, or national defense or national security.’” Critics contend the provision would create a legal framework in which countries could stop trials that would lead to the release of potentially embarrassing information, despite advocates maintaining that notes in the agreement provide for the retention of national whistleblowing laws.

However, before the TPP and its intellectual property provisions go into effect it must be passed by the national parliaments of the signatory countries. This will no doubt prove to a be a difficult challenge in the United States, as President Obama faces a skeptical Republican Congress on the right and the repudiation of the treaty by all the democratic frontrunners on the left.

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