U.S. White Paper on 'Schrems II': Emperor still clothed

A new U.S. white paper on data protection means favorably to supplement the record on U.S. surveillance practices that, in part, fueled the European Court of Justice (ECJ) decision in "Schrems II," in July, rejecting the adequacy of the Privacy Shield Framework to secure EU-to-US data transfers.

From the U.S. Department of Commerce, Department of Justice, and Office of the Director of National Intelligence, the white paper suggests that the ECJ ruling was interim in nature, pending investigation of U.S. national security practices to better understand whether they comport with EU General Data Protection Regulation norms, such as data minimization, which means collecting only data necessary to the legitimate purpose at hand.  The paper states:

A wide range of information about privacy protections in current U.S. law and practice relating to government access to data for national security purposes is publicly available.  The United States government has prepared this White Paper to provide a detailed discussion of that information, focusing in particular on the issues that appear to have concerned the ECJ in Schrems II, for consideration by companies transferring personal data from the EU to the United States. The White Paper provides an up-to-date and contextualized discussion of this complex area of U.S. law and practice, as well as citations to source documents providing additional relevant information. It also provides some initial observations concerning the relevance of this area of U.S. law and practice that may bear on many companies’ analyses. The White Paper is not intended to provide companies guidance about EU law or what positions to take before European courts or regulators. 

Armed with this additional information, then, the message to the private sector seems to be, Keep Calm and Carry On, using the very same "standard contractual clauses" (SCCs) that the ECJ invalidated.  Yet if the information featured in the white paper has been publicly available, why assume that the ECJ was ill informed?  (Read more about SCC revisions under way, and their likely shortcomings, at IAPP.)

Unfortunately for the U.S. position, the ECJ opinion was not, to my reading, in any way temporary, or malleable, pending further development of the record.  The white paper comes off as another installment in the now quarter-century-old U.S. policy that the emperor is fully clothed.

I hope this white paper is only a stop-gap.  As I said in a Boston Bar CLE recently, no privacy bill now pending in Congress will bridge the divide between the continents on the subject of U.S. security surveillance.  A political negotiation, which might involve some give from the American side at least in transparency, seems now to be our only way forward.

The white paper is Information on U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems II (Sept. 2020).