U.S. and Europe Forge Data-Protection Deal for Terrorism Cases

But Congress will have to act for it to take effect.

EU and U.S. flags at the EU headquarters in Brussels, March 10, 2014.
GEORGES GOBET/AFP/Getty Images
Dustin Volz
Sept. 8, 2015, 1:56 p.m.

BER­LIN—U.S. and European of­fi­cials fi­nal­ized a long-awaited data-pro­tec­tion deal that would provide a road map for how per­son­al in­form­a­tion is pro­tec­ted when shared across the At­lantic by law-en­force­ment au­thor­it­ies, of­fi­cials an­nounced Tues­day.

The so-called “um­brella agree­ment” is the cul­min­a­tion of four years of ne­go­ti­ations over how po­lice and judges should be able to share data dur­ing the course of crim­in­al or ter­ror­ism in­vest­ig­a­tions that cross bor­ders, and it marks a sig­ni­fic­ant step for­ward to re­build trust between the United States and its European al­lies after the Ed­ward Snowden spy­ing rev­el­a­tions that began more than two years ago.

For the deal to take ef­fect, however, Con­gress will first have to pass a meas­ure grant­ing European cit­izens the right to sue in U.S. courts if they be­lieve Amer­ic­an au­thor­it­ies have mis­used their per­son­al data. A bill to that ef­fect in­tro­duced in re­cent months has earned some bi­par­tis­an sup­port, but law­makers re­main grid­locked and dis­trac­ted head­ing in­to an elec­tion year.

“I am very pleased that today we have fi­nal­ised ne­go­ti­ations with the U.S. on high data-pro­tec­tion stand­ards for transat­lantic law-en­force­ment co­oper­a­tion,” Věra Jour­ová, the European Com­mis­sion’s justice com­mis­sion­er, said in a state­ment. “Ro­bust co­oper­a­tion between the EU and the U.S. to fight crime and ter­ror­ism is cru­cial to keep Europeans safe.”

But, Jour­ová ad­ded, “all ex­changes of per­son­al data, such as crim­in­al re­cords, names, or ad­dresses, need to be gov­erned by strong data-pro­tec­tion rules. This is what the um­brella agree­ment will en­sure.”

A sig­ni­fic­ant hang-up for the agree­ment has been the in­ab­il­ity for Europeans liv­ing in the United States to sue U.S. fed­er­al agen­cies if they be­lieve their data has been im­prop­erly used, shared, or dis­closed. Amer­ic­an cit­izens pos­sess that right already in the European Uni­on.

Earli­er this year, Rep. Jim Sensen­bren­ner, a Wis­con­sin Re­pub­lic­an, in­tro­duced the Ju­di­cial Re­dress Act to ad­dress the data-pro­tec­tion im­bal­ance. His meas­ure would grant cit­izens of European al­lies the right to sue in the United States in re­gard to data pri­vacy vi­ol­a­tions. A pro­posed amend­ment to the long-stalled Cy­ber­se­cur­ity In­form­a­tion Shar­ing Act, put for­ward by Sen. Chris Murphy, a Con­necti­c­ut Demo­crat, mir­rors the Sensen­bren­ner ef­fort.

“The re­cent agree­ment on data shar­ing between na­tions is a great step for­ward for in­ter­na­tion­al safety and prosper­ity,” Sensen­bren­ner said in a Tues­day state­ment. “The Ju­di­cial Re­dress Act, however, re­mains a crit­ic­al piece in our part­ner­ship with the European Uni­on and is crit­ic­al to en­sure con­tin­ued shar­ing of law en­force­ment in­tel­li­gence.  I am op­tim­ist­ic that it will not only be brought be­fore Con­gress, but will be passed with bi­par­tis­an sup­port.”

Jour­ová also called on Con­gress to ad­opt the bill, “which would en­able us to fi­nally sign and con­clude the um­brella agree­ment,” she said.

Jour­ová also said that European of­fi­cials were work­ing in tan­dem with the United States to com­plete a more ro­bust safe-har­bor agree­ment, which deals with cor­por­ate data. Such agree­ments re­quire U.S. com­pan­ies to cer­ti­fy that they meet cer­tain levels of pri­vacy pro­tec­tions. If they clear European stand­ards, the com­pan­ies are al­lowed to store and pro­cess Europeans’ per­son­al data.

The um­brella agree­ment also in­cludes lim­its on data re­ten­tion, no­ti­fic­a­tion re­quire­ments in the event of data breaches, and a right to ac­cess one’s per­son­al data—and cor­rect it if in­ac­cur­ate—main­tained by law-en­force­ment au­thor­it­ies, ac­cord­ing to a fact sheet re­leased with the an­nounce­ment of the deal.

Kaveh Waddell contributed to this article.
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