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EU Officials Say U.S. Shouldn’t Broaden Surveillance Law (1)

Oct. 23, 2019, 4:03 PM

European officials are urging members of Congress not to expand U.S. authority to surveil foreign communications as lawmakers work to reauthorize a law set to expire Dec. 15.

Surveillance limits and other safeguards in the USA FREEDOM Act must stay in place, and lawmakers must ensure that “this authority is not broadened,” according to a staff report released Oct. 23 by the staff of the European Commission, the European Union’s executive arm.

The concerns come as EU officials sign off, for the third year, on the U.S. commitment to the EU-U.S. Privacy Shield program relied on by over 5,000 companies, such as Facebook Inc. and Workday Inc., to transfer data from the EU to the U.S..

The EU has pushed the U.S. to be transparent about its surveillance activities, and retain personal data protections as they collect communications data on foreign targets.

The commission staff wants Congress to keep privacy protections for surveillance data of European citizens sent to the U.S. via the Privacy Shield, according to a separate staff report on the annual program review.

The National Security Agency and other U.S. intelligence agencies can collect business records more easily in national security investigations, place roving wiretaps on targets, and obtain certain call and text records from U.S. telecommunications companies under the law.

The NSA has abandoned one surveillance activity, a call records detail program under which it obtained phone numbers, call lengths, and other phone call identifiers on foreign parties. But the agency has said it wants to retain its authority to resume such data collection, if necessary.

As European Commission staff noted in the review, “the U.S. government already made a determination to suspend the program, weighing the relative value against the compliance incidents - and yet the administration is seeking reauthorization,” Eleni Kyriakides, international counsel at the Electronic Privacy Information Center, said.

Congress should also not limit companies’ power to be transparent about intelligence data requests when considering how to renew the law, European Commission staff members said in the report. Safeguards, such as the ability “for companies to report on the aggregate number of access requests received from U.S. public authorities,” shouldn’t expire, the staff wrote in the report.

“Transparency reports by companies have been a valuable part of the radical transparency about government access,” Cameron Kerry, former Commerce acting secretary in the Obama administration, said. Intelligence officials also understand the need “for transparency to be embedded” in their culture, he said.

Congress is likely to reauthorize the U.S.'s foreign surveillance authority under the law, but it’s unclear for how long. The Trump administration wants a permanent reauthorization for the NSA surveillance powers, while some lawmakers want to add civil liberties and privacy protections to limit intelligence authorities’ reach.

Lawmakers should keep “the current privacy provisions and avoid any roll-back of transparency reporting,” Tommy Ross, senior director of policy at BSA | The Software Alliance in Washington and former senior intelligence adviser for then-Senate Majority Leader Harry Reid (D-Nev.), said. But industry advocates are hoping for changes to transparency reporting requirements that would allow more detailed disclosures beneficial to consumers, he said.

Privacy Board Activities

EU officials also want the U.S. Privacy and Civil Liberties Oversight Board to continue oversight processes, while speeding up the release of reports over viewing intelligence activities, according to the staff report.

The European Commission generally approved of the PCLOB’s oversight activities. It sees them as necessary to help safeguard privacy and civil liberties. But the commission wants the board to issue its oversight reports more quickly.

“The Commission services would welcome a quick finalisation of this work and expect that at least parts of the Board’s report would be declassified,” the commission staff wrote.

PCLOB is working through its agenda and has taken up new projects, such as a study into facial recognition used in aviation security, after it reached a quorum of three members in October 2018. It also aims to continue its work on USA FREEDOM Act surveillance powers, a PCLOB spokeswoman said.

“Among the Board’s priorities is to complete a report on the Call Detail Records (CDR) program under the USA Freedom Act,” Jen Burita, director of legislative and public affairs at PCLOB, said in an email. “The purpose of this work is to inform Congress as it considers reauthorization of the Act later this year.”

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com