Some privacy experts say negotiations over replacing a widely used U.S.-EU privacy agreement might be easier under a Biden administration. P
Europeans officials and privacy experts hope the U.S. presidential election opens the door to improving relations over data privacy that grew shaky in recent years after a series of court challenges to American intelligence programs.
An election victory for either President Donald Trump or former Vice President Joe Biden could have different implications for potential privacy legislation in the U.S. as well as for international decisions about replacing a widely used privacy agreement with Europe and creating a trans-Atlantic framework for law enforcement authorities to more easily access digital evidence from technology companies.
Companies are waiting for a new agreement between the U.S. and the European Union that would allow them to easily transfer personal data between the two jurisdictions. Negotiations regarding such a pact began after the EU’s top court said in July that the trans-Atlantic Privacy Shield data-sharing arrangement adopted in 2016 was invalid because U.S. surveillance practices endangered Europeans’ personal information.
The court said U.S. intelligence activity goes beyond what is necessary to safeguard American national security or prevent crimes, and that Europeans don’t have proper ways to seek redress in American courts if U.S. authorities access their data. The European Commission and the U.S. Department of Commerce in August started discussing a possible replacement for the Privacy Shield and officials continue to hold regular phone calls, a spokesman for the EU body said.
Some privacy experts say the negotiations might be easier under a Biden administration because Europeans may trust his political appointees more than those of President Trump.
“If we have more transparency in surveillance, we’d have an adequate data protection level,” said Barbara Schmitz, head of data privacy at Germany-based lighting manufacturer Osram Licht AG . Ms. Schmitz said she thinks the Trump administration would be less willing to reform surveillance practices than a Biden administration.
It should be possible for the U.S. government to create ways for Europeans to have legal redress if U.S. authorities access their data, said Peter Swire, a former privacy official in the Obama and Clinton administrations who now is a professor of law at the Georgia Institute of Technology. Giving Europeans a way to seek redress in U.S. courts if their data is accessed by intelligence authorities was one of the issues raised by the EU’s top court.
However, it is less clear how U.S. officials would address another part of the court’s ruling about guaranteeing that intelligence activity is proportionate, Mr. Swire said. The court said that U.S. surveillance that could target Europeans’ data isn’t limited to only what is strictly necessary for national security.
Relations over data privacy may remain tricky in the near future regardless of who wins the election, some experts say. European and U.S. government officials have long stumbled over how intelligence authorities access data.
“I didn’t find any particular difference between the attitude during the times of President Obama and the times of President Trump in those discussions,” said Wojciech Wiewiórowski, the European data protection supervisor. “The problems are more or less the same and the answers are more or less the same.”
U.S. and European officials also will need to work on a framework for sharing electronic evidence between law enforcement authorities, Mr. Wiewiórowski said. The EU said it would seek such an arrangement with the U.S. when the European Commission proposed new legislation two years ago, but EU lawmakers are still negotiating that bill. The U.S. signed a similar agreement with the U.K. last year.
Some government officials who negotiate international data-sharing arrangements have worked in U.S. and EU agencies for years, and European officials know there will be some continuity under the next American administration regardless of the election outcome, said Caitlin Fennessy, the director of the Privacy Shield program at the Commerce Department from early 2018 to early 2019. She is now the research director at the International Association of Privacy Professionals, a Portsmouth, N.H.-based professional group.
Still, political decisions can make the relationship easier, Ms. Fennessy said, noting that relations between the U.S. and Europe became more strained in several policy areas under the Trump administration.
“The atmospherics do matter and I think there’s no question that the relationship between the U.S. and EU has grown somewhat more contentious,” she said.
While a U.S. federal privacy law wouldn’t reform the surveillance issues at the core of the tensions with Europe, it could give Europeans more confidence when dealing with data-transfers to the U.S., Mr. Swire said. “The entire European legal approach could really change if the U.S. adopts a general privacy law,” he said.
Greater confidence in U.S. privacy laws might sway the European Commission’s decision to strike a deal with American officials, and could affect how European privacy regulators view companies’ arrangements to move personal data across the Atlantic, Mr. Swire said. EU regulators can order companies to stop moving data to countries outside of Europe if it is risky. Ireland’s privacy regulator, for instance, last month ordered Facebook Inc. to stop sending Europeans’ personal data to the U.S.
However, many European lawmakers and privacy advocates don’t believe U.S. surveillance laws will quickly change to safeguard Europeans’ data under a Biden administration, said Sophie in ‘t Veld, a Dutch member of the European Parliament. “Some people think if Trump is out of office, everything will go back to a normal we’ve never had,” she said.
Write to Catherine Stupp at [email protected]