In the wake of the Schrems II ruling last July by the Court of Justice of the European Union (CJEU) invalidating the EU-US Privacy Shield, redress became a major sticking point in efforts to preserve transatlantic data flows. In that ruling, the CJEU found fault with how the United States affords individuals with ‘redress’ when they believe they have been the targets of illegal surveillance. The CJEU reiterated Article 47 of the European Union Charter of Fundamental Rights (Charter), which provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal.’ Under Privacy Shield, the U.S. designated a senior State Department official to serve as an ‘ombudsperson’ for reviewing and addressing individual complaints. The CJEU ruled that the ombudsperson mechanism failed to meet Article 47 requirements because it lacked independence and could not issue binding decisions.
For a country with 1.3 million lawyers that is no stranger to litigation, it may seem surprising that the topic of obtaining a remedy would be such a challenging one. And yet, it undeniably is, not only for the U.S. but also for any democracy seeking to protect the nation from external threats.
The reason? Secrecy. Protecting national security requires secrecy. Once foreign terrorists, cyber hackers, or spies realise that their identities, aliases, and online activities have been compromised, they will change their behaviour to avoid detection. A fully transparent intelligence service is a fully ineffective one.
On the other hand, open democracies require transparency to make sure governments remain accountable to the will of the people. As former U.S. Supreme Court Justice Louis Brandeis famously said in an early article about the importance of transparency, ‘[s]unlight is said to be the best of disinfectants.’
For 14 years, I served as the Civil Liberties Protection Officer for the Office of the Director of National Intelligence (ODNI). For the latter part of my tenure, I led the efforts of the Intelligence Community (IC) to enhance transparency, which gave me a unique vantage point on the inherent tension between necessary secrecy and public accountability. The IC has made dramatic progress in enhancing transparency, which continues to this day—you can see evidence of that progress on sites such as IC on the Record and intel.gov. Nonetheless, the IC must remain watchful to prevent the unauthorised disclosure of information that would harm national security.
Here lies the crux of the redress problem. How can claimants show they have suffered a loss that requires compensation, or a wrong that must be made right, if they do not know whether the government collected their data?
On the theory that one must first understand the problem to identify the solution, in this article, we will explore the redress challenge. In our next article, we will compare the U.S. approach with that of Europe. And in our third article, we will examine potential solutions to the redress problem.