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United States EU

The Supreme Court Just Made a US-EU Privacy Shield Agreement Even Harder (thehill.com) 60

The U.S. Supreme Court's decision this month in FBI v. Fazaga, a case challenging FBI surveillance, will make it significantly harder for people to pursue surveillance cases, and for U.S. and European Union (EU) negotiators to secure a lasting agreement for transatlantic transfers of private data. The Hill reports: The justices gave the U.S. government more latitude to invoke "state secrets" in spying cases. But ironically, that victory undercuts the Biden administration's efforts to show that the United States has sufficiently strong privacy protections to sustain a new Privacy Shield agreement -- unless Congress steps in now. In July 2020, the EU Court of Justice (CJEU) struck down the EU-U.S. Privacy Shield, a legal framework used by thousands of U.S. companies to facilitate data transfers, because the U.S. failed to provide adequate protection for data belonging to people from the EU. Specifically, the court found that U.S. surveillance authorities, including Section 702 of the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12333, permit unjustifiably broad government surveillance. The court also found that the Privacy Shield failed to provide adequate redress mechanisms for Europeans whose data is transferred to the U.S. -- namely, the ability to be heard by an independent court that can order binding remedies. In striking down Privacy Shield, the CJEU was clear: no EU-U.S. data-transfer agreement will survive the court's scrutiny until the U.S. narrows the scope of its surveillance and ensures that individuals subject to potentially illegal surveillance have a real, meaningful way to pursue accountability.
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The Supreme Court Just Made a US-EU Privacy Shield Agreement Even Harder

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  • The idea of adequate redress mechanisms is nonsense anyway. How do you get redress against un-admitted, scret spying?

    • by shanen ( 462549 )

      Two sincere responses.

      Shallow top level: You estimate the damages as well as you can. You also try to speed up the process of recognizing the damages. If there are penalty multipliers involved, then getting the exact number may not matter too much, because even the existence of the multipliers will threaten to push the violators deep into the red and remove the economic incentives.

      Deep level: Fix the Court itself. Since I think the main problem with the Court is the politicization, I suggest an answer (AKA

      • by GlennC ( 96879 )

        Why not make nonpartisan Justices more powerful than the partisan ones?

        What makes you think that there are ANY nonpartisan Justices?

        • by dryeo ( 100693 )

          There's degree's of partisanship. Simplest is a solution like shanen suggests, majority of both parties agreeing or a large super-majority.
          Ideally a Supreme Court Justice's qualifications should revolve around their judiciary skills, not which part of the Constitution they'll ignore and whether like the recent nominees, whether their allegiance is to America or a foreign church.
          I doubt that you're Founding Fathers wrote your Constitution expecting the Supreme Court to abridge the Bill of Rights, but rather

          • by shanen ( 462549 )

            Partial concurrence, but I think some of it is revisionist history. The Constitutional role of the Supreme Court wasn't really established until Marbury v Madison in 1803. But thanks for describing my approach as simple, though I hesitate to claim "simplest". Just the simplest I've been able to come up with yet, and even there I can anticipate potential problems... Gamesters exist and will always try to rig every game.

            • by dryeo ( 100693 )

              Well, there are likely other simple ways to do it but having thought about it previously these ideas seem simplest to implement.
              You're right about the Supreme Court claiming the power in 1803, it does raise the question of how and if the Founders considered dealing with unconstitutional laws.

              • Comment removed based on user account deletion
                • by dryeo ( 100693 )

                  That would have meant the Founders weren't very well aware of human nature, and the fact they did put in the checks and balances suggests they did. I guess the Federalist papers might have some mention of their thoughts at the time. It seems at least some of them expected a better Constitution to replace the current one within a couple of decades as versions 1 and 2 of most things need work.

                  • by shanen ( 462549 )

                    Basically concurrence, but the Constitution was version two. I don't remember what the first document was called, but I remember that it was way too weak.

                    • by dryeo ( 100693 )

                      The Articles of Confederation or such, it's why I mentioned versions 1 or 2. Version 4 would likely be the opposite to an improvement too with perhaps version 5 hitting the sweet spot. Or perhaps America has too many fundamental differences between different groups that no Constitution would really work well.

                    • by shanen ( 462549 )

                      Well, if you want to talk about page-one rewrites, then I have lots of weird ideas to think about, but I don't see any way to get there from here.

                      My current favorite would be guaranteed representation with real equality for every voter. The basic idea might sound simple, but I think the implementation would be a bit tricky. The simplest mechanism I've been able to imagine would involve a variation on Australian ranked voting. The legislature would be determined from the #1 picks at the district level, basic

                    • by dryeo ( 100693 )

                      Interesting, but over complicated and while math can be your friend, one of the issues with any voting system is that it has to be simple enough to be understood by the voters and trusted. Too complex and/or depending on computers is likely to result in a lack of trust.
                      Some possible fixes, pass Article the 1st, https://en.wikipedia.org/wiki/Congressional_Apportionment_Amendment [wikipedia.org] as it seems crazy to have the number of Representatives frozen at 435 for the last hundred odd years as the population has grown. I

                    • by shanen ( 462549 )

                      The reason for freezing the size of the House of Representatives is the committee size problem and it's already way too big to decide anything effectively. But if it's a direct one-level system, then you're basically screwed there.

                      If you want to fix things along those lines, then I think (in a highly theoretical way again) you need to go hierarchical while considering Dunbar's Number. If you accept the value of 150 (though I think my own limit is lower), then I think that should map to "voting cells" around

            • I don't encoding partisanship into the system, even anti-partisanship. I see no room for legal recognition of political parties so a super majority should be required (the same should really be required to pass anything through either house senate which fails the unanimous test). Membership in organized political gangs (which is what the parties are) should be outlawed both for justices and congress critters.

              fMRI's have shown that people with partisian affiliation stop using reasoning centers in the brain o
              • by shanen ( 462549 )

                Complicated topic. The founders did hate parties, but there's no way to prevent them. Whether or not they label it a party, a gang, or THE PARTY, a group of people can still overpower (or outvote) one person.

                I did simplify my proposal for the normal stable situation of two relatively balanced parties. America has actually had a couple of periods where only one party was effectively in charge, but fortunately it was some form of the Democratic Party, and since they are not really an organized party (per the

                • I think the super majority requirement should always be there. A permanent filibuster. This is so that every representative without regard to club member proportionally represents their voters and no simple majority winner takes all system can steam roll over others. This works just as well for fighting off a popular short term cult gaining traction as a political party. It also makes it harder to buy laws.

                  The D's have not always been the dominant party by a long shot, actually it has mostly been the other
                  • by shanen ( 462549 )

                    Go study some history and get back to me.

                    Hint. It ain't history until all of the participants are dead.

                    • History only gets worse for the democrats as you go back unless you are referring to the states rights aspect of the their confederacy period?

                      The issue with that period is that they were still advocating a relatively authoritarian government control over the populace and the trampling of individual rights, they merely wanted to do it from the state level seat of power rather than the federal level. It might be better for individual liberty to have less centralized authority and more power in the hands of th
                    • by shanen ( 462549 )

                      NAK, but now I recommend you study logic and intellectual honesty as well as history. Probably some kind of Libertarian Derangement Syndrome.

                      Tell you what. I've learned to ignore your comments. Not interested in wasting time arguing with a fool. Only better if you reciprocate my sentiments.

                      I'm ignoring you now, and I'll thank you to ignore my comments, too.

                • I did simplify my proposal for the normal stable situation of two relatively balanced parties.

                  That is only "normal" in a simple majority voting system. With proportional representation, it's much more normal to have multiple parties.

                  • by shanen ( 462549 )

                    Not sure what you intend by "proportional representation" in this context. However you remind me of the concern with "dictatorship of the majority" and the need to protect the rights of minorities.

                    (But that reminds me of a discussion from 2001, where a law student was defending Bush v Gore on the grounds that America was becoming a "judicial dictatorship". My fuzzy recollection is that he even confessed to wanting to become one of the dictators. Too bad I've lost the link. If he's become a judge since then,

              • by dryeo ( 100693 )

                In Parliamentary systems, not having parties is called consensus government. It is hard to make work. My Province used it a long time ago, nothing got done and some things like the budget needs to be done.
                Today Nunavut and IIRC, the North West Territories do use it, no parties and it does work for them. Likely a culture thing as Nunavut is populated mostly by natives.
                https://en.wikipedia.org/wiki/... [wikipedia.org]
                Might be easier in your Presidential system if the President was non-partisan.

          • I doubt that you're Founding Fathers wrote your Constitution expecting the Supreme Court to abridge the Bill of Rights, but rather to strike down unconstitutional laws with the expectation that the Constitution would be amended if passing a law considered unconstitutional was important enough.

            The power of judicial review, i.e. of striking down unconstitutional laws and administrative actions, is not in the constitution, and is not something anticipated by most Founding Fathers. It was essentially invented by the John Marshal court when reviewing Jefferson's decision not to seat some of John Adam's midnight appointments. The history of the US constitution and the Supreme Court is a lot more interesting and a lot less straightforward than most people are aware of.

            • by dryeo ( 100693 )

              Yes, (I'm not American) I'm sorta aware of how things developed. It still raises the question of how dealing with unconstitutional laws was to be handled. Perhaps they had faith in humanity and figured everyone would be honourable, otherwise it seems inevitable that judiciary review would happen. Congress passes bill limiting my speech with potential jail time, at trial I should be able to use the 1st amendment as a defence.

        • by shanen ( 462549 )

          Funny joke time. There was one nonpartisan Justice in your lifetime. The Notorious RBG was actually the last living Justice who had been confirmed by a majority of the Senators from both parties. Two funny notes there. One, she was the only one when she died. Two, all reports suggest she was too nice to ask for the recusals even if she had been given such a capability.

          (Going beyond the easy jokes and following the link, you can see that Souter, Kennedy, Breyer, and Scalia, yes, THAT Scalia, were also nonpar

          • Well your assessment is certainly partisan. Thomas is probably the most pro-constitution and staunch defender of individual liberty on the court. In other words the poster child of minimum basic requirement for any justice to sit the court... a standard many of the justices fall short of. Admittedly he does steer a bit partisan when those issues come up as well.

            The problem with finding non-partisan justices that everyone will agree on is that one party actively wants the court to bypass the Constitution whi
      • If you can't show that you've spied on, the case is tossed

    • You stop the secret spying. That is the entire idea.

      The US just changed the espionage rules so that when we spy on people warrant requests to corporations we can not "gag" them for more than 6 months. This is literally the previous Slashdot story.

      We can do more. We could force the espionage corporations to reclassify every secret every 10 years, and presenting to a court anything they want to maintain secrecy for more than 40 years.

      We could also require "Victim Reveals with no further information." That

  • ... in a TPM and windows 10/11 back ended operating system world with shit like intel management engine on CPU's. This is nice PR propaganda for those not in the know and clueless. The attack surface for spying and exfiltrating data is enormous thanks to jackasses buying mmo's, steam and windows 10/11, thereby giving governments full round the clock access to peoples most private communications.

  • All "secret" ruling should come with a deadline, and only one lifetime exception for a fixed delay.

    This will prevent leaking any current investigation, but still keeps the people's right to privacy.

    If you are doing something so much outside the regular practices, that it cannot even be known several years after the fact, you should not be doing that in the first place.

    (I would suggest a regular 2 year period + a 5 year extension. But extensions should also be capped to only 5% of the cases. If you're over q

    • I'd cap it more than that. I don't see any need for the secrecy at all. It actually makes it so rubber stampign is the only choice the court has, they can't ask anyone for any kind of proof or confirmation of anything because it is all secret. Any secret operation should be of such short duration and precise execution that good old fashioned stealth and not legally binding gag orders should apply.
      • by stikves ( 127823 )

        There are some limited valid cases.

        Say, you catch someone sending an email. It might make sense to have a court order to peek at the inbox, without alerting the subject. However if you cannot find anything incriminating, then you'd need to stop.

        Currently there are "geofence" warrants that pick "all the users in certain city blocks at certain times", which is quite excessive, and none of them are alerted after the fact.

        • I'm not seeing a valid use case there. The subject isn't going to know unless you mess up (no order will help you there) or they actively know to be requesting the documentation AND can get their request processed faster than you can look at their inbox. Just because it isn't a secret doesn't mean you are obligated to notify. Now the tech company might do that but there is no particular reason we need to allow the government to snoop on people without them being alerted.

          The ability to investigate and catch
  • It would be of mild (!!) interest to know whether any of the "left" justices voted with the majority.

    But either way this ruling is grossly anti-Constitutional (which might or might not be technically UNconstitutional)

    • by GoTeam ( 5042081 )
      As far as I can tell, the decision was unanimous. They wrote (or Alito did) "that a provision of the Foreign Intelligence Surveillance Act does not displace the state secrets privilege". Doesn't seem to skew along party lines.
      • by dryeo ( 100693 )

        So they all agree that the 1st amendment says something different then a simple reading suggests.

    • Was a 9-0 unanimous, with Alito authoring the decision:

      https://www.scotusblog.com/cas... [scotusblog.com]

    • It was unanimous. https://www.scotusblog.com/cas... [scotusblog.com]

    • And the opinion was basically "this is how the law is written and no it's not unconstitutional so if you want it fixed you need Congress to do it.

      And looking at it they're probably right. The right wing judges would be fine with this. The left wing judges tend to focus on procedure and the rule of law, so they're going to leave it to Congress to fix rather than "legislate from the bench".

      This is how/why countries tend to become right wing and authoritarian, BTW. It's a ratcheting effect because peop
      • "The left wing judges tend to focus on procedure and the rule of law, so they're going to leave it to Congress to fix rather than "legislate from the bench"."

        LOLOLOLOL You've got to be kidding me. By procedure and the 'rule of law' I assume you mean making procedures which aid in dismantling any and all limitations on their power to dictate.
  • The Absurdity of the situation is the following:

    As long as a criminal investigation is backed up by a court order, you are allowed to do even more in many EU states than in the USA. And there really are judges 24/7 in the EU who can approve an investigation. And they do. Even if the application comes from the USA. As long as it is justified, it is an administrative act of 15 minutes.

    And even if these 15 minutes are not available, self-defence or danger of collusion apply, in which case an application can be

    • I thought you were going to mention this:

      the Biden administration's efforts to show that the United States has sufficiently strong privacy protections

      Which is quite funny, given that we have essentially none whatsoever.

  • Thank God (and I'm an atheist), I praise the US Court for making it easy to avoid any false agreement of US protecting EU private data, which they would never ever would have follow (violating in secret our privacy).

    So, fantastic news: they won't get our private data (as it should be). Or would the US give us their population private data to us?

    • I think you are being a little naive. The 5-eyes countries get around their internal laws about surveilling their own people by getting the records from the other countries' spy databases. So any info in US-CAN-GB-NZ-AUS is easily acquired within the network.

      • by Sique ( 173459 )
        There is one thing, spying.

        There is another thing, criminal investigation.

        Due process means that you can only bring facts to the court that are legally obtained. Facts obtained by spying are not admissible. And that's the issue at hand. The Supreme Court of the United States just ruled that all data from non-U.S. citizens are fair game for U.S. courts. And now each company processing data from the E.U. in the U.S. has a hard time explaining why they needed to transfer the data in the U.S. to begin with.

  • The law must be "Make cookies opt-in on all your websites or you pay 1% of your turnover per day until they are".

    Done. No EU-US cooperation needed.

    Fuck the "Click here, here and here and here and we'll give you cookies anyway" bastards
  • This seems like just calling it how it is. The prevailing US laws for government surveillance in the post 9/11 era are well known to be overly broad and lacking transparency and accountability. This was known before they were passed (for laws) or put in place (in the case of executive orders). There has always only been one way to change that: by changing the laws. Even the executive orders can be "fixed" by an explicit act of the legislature pertaining to the topic.
  • The decision was announced on 24 March, or 19 days ago as of this posting. Stop saying something "just" happened unless it's 24 hrs. hold. Clickbait != good journalism.
  • The US is a defacto surveilance state and the Europeans aren't playing ball

Your password is pitifully obvious.

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