Jep ik wel, al is het inderdaad een aardig boekwerk (as usual, waarom zouden ze het ook eens kort maar krachtig verwoorden/uitleggen voor de verandering weetjewel.)
Maar goed, het eerste stuk is dan ook al in 2015 naar buiten gebracht, wat maakt dat ik het stuk al een poosje geleden doorgelezen heb.
Ik citeer:
Generally, it can be concluded that the EU data protection framework in the law
enforcement sector is shaped by comprehensive data protection guarantees, which are
codified in EU primary and secondary law and are accompanied by EU and
ECtHR case law.
In contrast, US data protection guarantees in the law enforcement and national security
contexts are sector specific and are therefore contained within the specific instruments
which empower US agencies to process personal data. They vary according to the
instruments in place and are far less comprehensive.
Above all, constitutional protection is limited. US citizens may invoke protection through
the
Fourth Amendment and the Privacy Act, but the data protection rights granted in the
law enforcement sector are limitedly interpreted with a general tendency to privilege law
enforcement and national security interests. Moreover, restrictions to data protection in the
law enforcement sector are typically not restricted by proportionality considerations,
reinforcing the structural and regular preference of law enforcement and national security
interests over the interests of individuals. Regarding the scope and applicability of rights,
non-US persons are usually not protected by the existing, already narrowly interpreted,
guarantees. The same is true with regards to other US law. When data protection
guarantees do exist in federal law, they usually do not include protection for non-US
persons.
A majority of the EU data protection standards cannot be found in US law. For instance,
rules limiting inter-agency data exchange, exchanges with other third parties, completely
independent oversight, strict proportionality rules and effective judicial review possibilities
and information requirements for non-US persons on surveillance or data breaches or
effective access, and correction and deletion rights simply do not exist at all or are, at best,
very limited. These shortcomings are also visible regarding existing data exchange
agreements between the US and the EU, such as, for instance,
the Safe Harbor regime. Its
principles do not necessarily comply with the current EU data protection standards.
In particular, the approach to data sharing is fundamentally different. Whereas in EU law
every transfer of data to other agencies interferes with fundamental rights and requires
specific justification, data sharing in the US between law enforcement authorities and the
intelligence community seems to be the rule rather than the exception.
Nonetheless, the introduction of stricter access requirements in the
FREEDOM Act using a
specific selection term for the collection of tangible things and metadata for foreign
intelligence purposes is an improvement compared to the former provisions. Regrettably, this newly introduced restriction does not affect Section 702 of the FISA Amendment Act or
Executive Order 12333, which still authorize far-reaching surveillance of foreign intelligence
information, including the accessing of communications, content, metadata or other records
by governmental agencies. A future instrument regulating EU-US data exchange should
address the mentioned issues, as serious concerns about their compatibility with EU
fundamental rights arise.
It can be also deduced, from the comparison, that even if all existing US data protection
guarantees in the law enforcement and national security framework were applicable to EU
citizens, there would still remain a considerable shortcoming regarding the level of privacy
and personal data protection compared to the protection through EU law. Recent proposals
and changes through the
Draft Judicial Redress Act of 2015 and the
FREEDOM Act only partially improve the current situation. The recently initialized "Umbrella Agreement" could
lead to changes with regards to data protection guarantees in the law enforcement and
national security sectors, but it remains to be seen which specific material rights and
guarantees will be included in such an agreement. A leaked version of the Umbrella
Agreement was published after the finalization of this study. A brief analysis of the
agreement’s text is therefore added in the end.
[Reactie gewijzigd door SSDtje op 29 juli 2024 14:58]