1. Panel: “Surveillance Oversight, Intelligence Sharing, and the Rule of Law”
Peter Swire
Holder Chair of Law and Ethics
@tlantic conference on Surveillance in EU & US
Brussels (presented remotely)
September 26, 2017

2. Overview
This talk summarizes key findings from 300-page sworn testimony in Schrems v. Facebook
Recently published
Explains US surveillance law to an EU audience
Full materials at:
Short summary essays about the testimony
Chapitre 1, “Résumé de Témoinage” est disponible en français
Testimony of other experts at

3. Swire Background
Student (a long time ago) at ULB on European Community law
Over 20 years as privacy, data protection, and cybersecurity professor
1998 book on EU/US data protection
, Chief Counselor for Privacy in Clinton White House
Extensive work on the Safe Harbor
2004: “The System of Foreign Intelligence Surveillance Law”
2013, one of five members of President Obama’s Review Group on Intelligence & Communications Technology (“NSA Review Group”)
2015, after Schrems I, sole non-government US expert who testified for DPAs on effects of Schrems – testimony documented 24 US surveillance reforms since 2013 (and more since) –

4. December 2013: The Situation Room

5. Background for the Testimony
Current case in High Court of Ireland, Schrems v. Facebook, on adequacy of Standard Contract Clauses
Irish Data Protection Commissioner found complaint by Schrems to be “well founded”
Issue: is there inadequacy due to national security surveillance for personal data transferred to the U.S.?
Irish court procedure: experts selected by a party (I was selected by FB), but sworn obligation to provide independent testimony to the Court on US law
I retained completed editorial control over content
Experts conferred about disagreements with each other’s testimony; based on that, I changed two sentences in 300 pages of testimony

6. U.S. Systemic Remedies
Many of the most effective protections for privacy exist systemically, before a violation, rather than only by ex post remedies
For auto accidents, it is good to have a remedy after the accident; it is better to prevent the accident from occurring
Chapter 3: many systemic remedies under US law (49 pages)
Chapter 6, Oxford team led by Ian Brown found “the US now serves as a baseline for foreign intelligence standards.”
The legal framework for foreign intelligence collection in the US “contains much clearer rules on the authorisation and limits on the collection, use, sharing and oversight of data relating to foreign nationals than the laws of almost all EU Member States.”
Chapter 4: strong systemic remedies for US criminal law

7. Foreign Intelligence Surveillance Court
Chapter 5: We reviewed all materials declassified by the FISC from 2013 to late 2016
Significant compliance problems until about 2009
The FISC today exercises independent and effective oversight over US intelligence surveillance
Growing number of requests refused or modified
Several surveillance programs halted or modified by the FISC
The FISC monitors surveillance programs far more than most have realized
Improved transparency
Third party, independent litigants increasingly appear before the FISC

8. Many US Individual Remedies for Privacy
Chapter 7 details many US remedies for privacy violations
Under US law in general, many advantages for plaintiffs, such as:
Broad discovery
Contingency fees
Favorable attorney’s fees
Jury trials
Class actions
Important remedies against service providers who violate law to provide telecommunications records to the government

9. Broader Implications of the SCC Case
Major impact if inadequacy finding “only” applies to (a) the US, for (b) Standard Contract Clauses
Geographic scope: study of the BRIC countries (Brazil, Russia, India, China), and none are close to the US in adequacy of surveillance oversight
Beyond SCCs:
Extent of surveillance within US is independent of the lawful basis of the transfer
Privacy Shield – very similar safeguards as SCCs
Binding Corporate Rules – again, within US, similar safeguards
And, US as “baseline” for strict standards for intelligence oversight
Therefore, hard to see how to limit the scope of an inadequacy finding – there may be no lawful basis for many transfers to most countries outside of the EU

10. Conclusion
For Schrems I, there was not much factual record about US law for oversight of national security surveillance
In my experience, there has been limited appreciation of the multiple safeguards within US law for intelligence oversight
This sworn testimony – very detailed, with footnotes for everything
I respectfully suggest that EU experts should read the published testimony of the experts in US law, in the current case
Without study of this material, we could see a decision with large consequences, without accurate recognition of actual US law and practice