The Power of Perspectives

The Canadian Bar Association

Yves Faguy

The executive order and data protection

January 31 2017 31 January 2017


U.S. President Donald Trump’s executive order on “Enhancing Public Safety” has generated a lot of concern about it eliminating privacy protections enjoyed by foreigners, including Canadians, in the U.S. It would also affect much of the internet traffic in Canada that gets routed through the U.S. (see video above); Michael Geist writes that it’s clear that the personal information of Canadians will not be protected under the US Privacy Act. 

On paper, however, it appears that EU citizen rights under the EU-US Privacy Shield Framework For Transatlantic Data Flows are not (as of February 1, 2017) directly affected. The Privacy Shield Framework allows companies to move data across the Atlantic, while protecting certain fundamental rights to privacy and data protection.

Daniel L. Farris and Amanda Katzenstein worry that the EO could nevertheless render the Privacy Shield meaningless:

Enforcement of the Privacy Shield, for example, is the responsibility of the Department of State and the FTC. Those are executive agencies under President Trump’s direction. If Trump directs them not to prosecute privacy violations, or if enforcement is reduced, it is hard to imagine Privacy Shield surviving in the long-term. After all, a key component of the Privacy Shield framework, in light of Safe Harbor's invalidation, was increased U.S. enforcement of EU privacy rights. That agreement includes US recognition of the right of Europeans to bring enforcement actions in the U.S. against companies that might not otherwise be reachable in the EU. 

Adam Klein and Carrie Cordero note, too, that the Privacy Shield is being challenged in a European court and Trump’s latest move can’t help proponents of the framework:

Of course, even the suggestion that the Administration is cutting back privacy protections for Europeans could be damaging in the ongoing litigation over Privacy Shield’s validity; the Court of Justice of the EU showed in the Schrems decision that is moved less by the hard facts of U.S. surveillance policy than by a hazy sense of U.S. overreach.  To fend off another Schrems-like decision, the U.S. should work to alter prevailing misperceptions about its surveillance and privacy policies.  (One of us has proposed in a recent report various steps the United States could take to do so.)  But this Executive Order is ancillary to those debates.

Credit video: Open Media



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