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Thursday, June 30, 2016

CJEU to Address Bulk Surveillance Issues This Fall

The Court of Justice of the European Union (CJEU) is expected to rule in two cases this fall that will compel it to examine the issue of bulk collection of personal data by law enforcement and security agencies in greater detail than it did in the Schrems case.  The first is a challenge to the Canada-EU Passenger Name Record (PNR) Agreement and the second involves the data retention laws of the UK and Sweden.  A thoughtful analysis by Kenneth Propp, former legal counselor to the US Mission to the EU, outlines the broader risks rulings in the cases could pose to the 2011 PNR and the 2009 Terrorist Finance Tracking Program (TFTP) Agreements between the US and the EU, let alone to the proposed Privacy Shield framework.

With so much at stake, it is not surprising that on June 13 the US government announced that it had asked the Irish High Court to be joined as an amicus in Max Schrems’s latest complaint concerning the validity of standard contractual clauses as a basis for data transfers to the US.  Since the Irish DPA had previously announced that it was referring the matter to the CJEU, the amicus status will provide the US with an opportunity to describe and defend its surveillance practices directly in a court of law.  The development was welcomed by Max Schrems, who said ““This is a huge chance to finally get solid answers in a public procedure. I am very much looking forward to raise all the uncomfortable questions on US surveillance programs in this procedure. It will be very interesting how the US government will react to the clear evidence already before the court.”

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