ACIR Presents Professor Peter Swire:  The Clash of the U.S. and the E.U. on Privacy and National Security

Concerns have arisen in Europe that US efforts to gather personal data for security reasons jeopardize the privacy rights of European Union citizens. As a result, we are in the midst of two historic areas of tension between the European Union and the United States in the area of data privacy. The first is the entry into effect of the EU General Data Protection Regulation (GDPR) in May, 2018. The GDPR updates and expands the EU Data Protection Directive that entered into effect in 1998. It provides strong new individual privacy rights, places many new compliance obligations on organizations, and sets fines up to four percent of a company’s global revenue. The second is the continuing litigation that activist Max Schrems is bringing against Facebook, challenging the lawfulness of flows of personal data to the United States. Schrems won the first round in the European Court of Justice, which struck down the EU/US “Safe Harbor” in 2015. Recently the Irish High Court found in favor of Schrems in his complaint against the widely used Standard Contract Clauses for transferring data from the E.U. to the U.S. and elsewhere. That case is now scheduled to be referred to he European Court of Justice once again, posing the possibility of a massive blockade of personal data from the E.U. to the U.S., with potentially huge fines for U.S. companies who don’t comply.

The speaker will draw on his two decades of experience in the privacy debates between the E.U. and the U.S. His Brookings book on the topic was published in 1998. He served in the White House as the Clinton Administration’s lead privacy official during negotiation of the Safe Harbor in 2000. When Schrems won the 2015 case, Swire was the only U.S. person not in the government asked to testify for European privacy regulators about the effect of the decision. In the Irish trial, Swire submitted testimony of over 300 pages explaining relevant U.S. privacy and surveillance law to the court.