Privacy Advisor

U.S. Intel Officials Defend Programs; EU Fallout Continues

As top U.S. intelligence officials defend the legality of their surveillance programs, relations between the EU and U.S. remain on shaky ground as trade talks and EU data protection reform loom

October 30, 2013

By Jedidiah Bracy, CIPP/US, CIPP/E

Top U.S. intelligence officials testified in a rare open hearing with the House Intelligence Committee, with National Security Administration (NSA) Director Gen. Keith Alexander and Director of National Intelligence James Clapper among them. While they were in concert with one another, the House committee members were, at times, singing different tunes.

Clapper said his agency was “very aware these unauthorized disclosures have raised serious concerns,” but through the selective release of a number of declassified documents, including some from the Foreign Intelligence Surveillance Court, the intelligence community hopes to “facilitate an informed public debate.”

Alexander spoke off-script about the hard work of NSA staff and reminded the committee that U.S. intelligence is attempting to prevent another incident like 9/11. He also commended Office of the Director of National Intelligence Civil Liberties Protection Officer Alexander Joel, CIPP/US, CIPP/G, for his work ensuring privacy protections were observed.

A number of back-and-forths between House Intelligence Committee Chair Mike Rogers (R-MI) and Adam Schiff (D-CA) highlighted committee disagreement about the amount of oversight it has been allowed to have of the U.S. intelligence programs, particularly in light of revelations that U.S. intelligence tapped the phones of several U.S.-allied world leaders, including German Chancellor Angela Merkel. 

President Barack Obama may actually order the NSA to stop eavesdropping on the leaders of American allies altogether, according to The New York Times. The move comes after an about-face by one of the NSA’s staunchest Senate allies, Sen. Diane Feinstein (D-CA). She said, “I do not believe the United States should be collecting phone calls or e-mails of friendly presidents and prime ministers.”

During the hearing, Rogers intimated that some of the spy data collected within the EU was supplied by European intelligence sources and shared with the U.S. He also asked Clapper if it is possible that European parliamentary members were not aware of what their governments’ intelligence services were up to.

“Yes,” answered Clapper. “That comports with my experience.”

The Wall Street Journal reports that Europeans have shared spy data with the U.S., including millions of phone records. The allegations that U.S. intelligence services collected the data have potentially delayed the EU’s data protection reforms and frayed the EU-U.S. trade talks. According to The Guardian, Spanish newspaper El Mundo reports that surveillance of Spanish civilians, which was originally thought to be exercised by the NSA, was in collaboration with Spanish intelligence services.

According to U.S. News and World Report, EU officials, including members of the European Parliament, will meet at the White House to discuss how to rebuild trust on intelligence gathering and ways the U.S. can bolster its data protection laws. EU Justice Commissioner Viviane Reding said, “Once a single and coherent set of data protection rules is in place in Europe, we will expect the same from the U.S.”

In a report for Euractiv, Reding also warned that data protection should be kept off the agenda during the Transatlantic Trade and Investment Partnership, but according to the report, pressure is mounting from the U.S. to keep the debate open.

“I warn against bringing data protection to the trade talks,” Reding said. “Data protection is not red tape of a tariff. It is a fundamental right, and as such, it is not negotiable.”

Euractiv also published a Q&A with Monique Goyens, who serves as director general of the European Consumers’ Organisation (BEUC). When asked if she thought data protection could derail trade talks, Goyens said, “We strongly believe data flows should be left out of the negotiations. The EU needs to first of all lock down the update of its data protection laws … The data protection regimes between the EU and U.S. are grossly different and imbalanced. There is no common standard to discuss data privacy issues in the context of trade negotiations.”

Article 29 Working Party Chairman Jacob Kohnstamm said an “urgent” overhaul of the region’s data protection law is needed. “Looking at the NSA issue and all that goes with it, and looking at the near monopolies or monopolies of big U.S. companies on the Internet,” Kohnstamm said, and then “the fundamental right of data protection in Europe, it makes the sense of urgency to get the EU general data protection regulation framework accepted so clear to me.” 

Further, the largest political party in the European Parliament, the center-right EPP, wants to end Safe Harbor, EUObserver reports. The party’s vice president, German MEP Manfred Weber, said the “EPP group wants to terminate the agreement as it stands now and negotiate new rules.” There “have been doubts,” he said, about whether U.S. firms comply with EU law, “not just since the revelations about the NSA activities.” He added, “That is why we are saying ‘yes’ to a strict EU data protection legislation but ‘no’ to the Safe Harbor agreement in its present form.”

The Guardian has also published a comprehensive “hub” of all Edward Snowden, NSA and British intelligence-related developments. Techdirt has released a video clip from the second panel during the House Intelligence Committee hearing in which Rep. Rogers asks American University Washington School of Law Prof. Stephen Vladeck, "you can't have your privacy violated if you don't know your privacy is violated, right?"

Read more by Jedidiah Bracy:
FTC’s Brill to Technologists: This Is Your Call to Arms
Acxiom, MasterCard CPOs Talk Transparency, De-identification, FTC Consent Orders
Cato Conference: We Have Problems, Is NSA Biggest One?
Three Steps to Heaven, St. Rita and the Future of the EU Draft Regulation