President Joe Biden on Friday will sign an order to implement the details of an agreement with the EU, including new privacy protections for the bloc's citizens that authorities hope will finally regularize data flows between the two continents.
The new measures, which include a set of two binding appeals for Europeans who believe their data has been improperly collected by the U.S. intelligence community, could be the crucial step necessary to replace Privacy Shield — a prior attempt to protect the legal status of information that companies move across the Atlantic. The new program is bound to face judicial scrutiny, however.
European courts struck down the Privacy Shield framework in 2020, causing a scramble as firms tried to keep trillions of dollars in digital commerce flowing while having fewer clear legal foundations for the data flows. EU lawmakers have often wanted to protect those huge volumes of business, and many in the bloc look skeptically both at mass U.S. government surveillance and the lack of national data protection laws.
Those concerns prompted the downfall of Privacy Shield as well as an earlier approach in 2015 that Privacy Shield was designed to replace. Max Schrems, the Austrian privacy campaigner behind both cases, scoffed at the new approach the U.S. and EU announced in March they had agreed to, and indicated he would again challenge any EU move that blesses data flows under the new terms.
Friday's order will give Europeans the ability to appeal to a civil liberties official within the Office of the Director of National Intelligence, and then to a new "court" set up by the attorney general and staffed by outside experts who have protections against removal.
While Privacy Shield also allowed appeals to an official within the State Department, administration officials who briefed the media on condition of anonymity said they hope the new approach would be seen as providing both more independence and more authority over the intelligence community.
The order also purports to require new safeguards in the U.S. intelligence community's vast surveillance apparatus, which has often pushed the boundaries of the law with help from tech companies while facing little accountability.