![]() Max Schrems: " We will analyze this package in detail, which will take a couple of days. In the meantime, US congress will have to re-authorize FISA 702 in 2023, potentially allowing the US legislator to implement meaningful limitations that respect privacy rights of non-US persons. If the Commission decision is not in line with EU law and the relevant CJEU judgments, noyb will likely bring another challenge before the CJEU. noyb and its partners will analyse the documents in more detail the coming days and will issue a detailed legal analysis within the next days and weeks. The details of the procedure will also be relevant to see if this can satisfy EU law."įurther research and possible challenge. The Charter has a clear requirement for 'judicial redress' - just renaming some complaints body a 'court' does not make it an actual court. Max Schrems, chair of : " We have to study the proposal in detail, but at first glance, it is clear that this 'court' is simply not a court. Section 3(i)(d)(H) even goes so far to spell out what the "Court" will respond - no matter you arguments or case: " the review either did not identify any covered violations or the Data Protection Review Court issued a determination requiring appropriate remediation." This also makes the option for an appeal useless, as there is simply nothing to appeal about, as long as the user got this rubber stamp answer. The US government will neither confirm nor deny that the user was under surveillance and will only inform the user that there was either no violation or it was remedied (see Section 3(c)(E) of the EO). Users will have to raise issues with a national body in the EU, who will in turn raise the issue with the US government. Judgment by "Court" already spelled out in Executive Order. It seems clear that this executive body would not amount to "judicial redress" as required under the EU Charter. The new system is an upgrades version of the previous "Ombudsperson" system, which was already rejected by the CJEU. However, this will not be a "Court" in the normal legal meaning of Article 47 of the Charter or the US Constitution, but a body within the US government's executive branch. There will now be a two step procedure, with the first step being an officer under the Director of National Intelligence and a second step being a "Data Protection Review Court". The Executive Order is meant to also add redress. ![]() The European Commission is turning a blind eye on US law again and allowing the continued surveillance of Europeans." In the end, the CJEU's definition will prevail - likely killing any EU decision again. Max Schrems, chair of : " The EU and the US now agree on the use of the word 'proportionate' but seem to disagree on the meaning of it. If it would have the same meaning, the US would have to fundamentally limit its mass surveillance systems to comply with the EU understanding of "proportionate" surveillance. How is this possible? It seems, the EU and the US agreed to copy the words " necessary" and " proportionate" into the Executive Order, but did not agree that it will have the same legal meaning. So-called "bulk surveillance" will continue under the new Executive Order (see Section 2 (c)(ii)) and any data sent to US providers will still end up in programs like PRISM or Upstream, despite of the CJEU declaring US surveillance laws and practices as not " proportionate" (under the European understanding of the word) twice. However, despite changing these words, there is no indication that US mass surveillance will change in practice. ![]() This could solve the problem, if the US would follow the same understanding and also apply the proportionality test of the CJEU. The US highlights, that the new executive order uses the wording of EU law (" necessary" and " proportionate" as in Article 52 CFR) instead of the previous term " as tailored as feasible" used in Section 1(d) of PPD-28. ![]() Bulk surveillance continues via two types of "proportionality".
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