On October 20, the U.S. House of Representatives passed the Judicial Redress Act (the “Act”) to allow European Union residents to challenge certain privacy violations by the U.S. government in U.S. courts. If passed by the Senate and signed by President Obama, the new law would clear the way for the adoption of the new U.S.-E.U. Umbrella Agreement governing the sharing of personal information between law enforcement in the two jurisdictions. Following the invalidation of the U.S.-E.U. Safe Harbor, the bill has also gained attention as aiding the negotiation of a replacement mechanism to cover cross-border data transfers between private entities.
The Act, H.R. 1428, would permit citizens of “covered countries” to challenge acts of the U.S. federal government under the Privacy Act of 1974 to the same extent as a U.S. citizen. The bill would give the U.S. Attorney General the authority (with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security) to designate such countries that have established “appropriate privacy protections for information shared for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses.” Section 2(d)(1)(A). European Union regulators had made the availability of such a remedy a necessary condition to their adoption of the new Umbrella Agreement, signed in September, to cover the sharing of personal information between the United States and E.U. member states for law enforcement and counterterrorism purposes.
Once effective, the Umbrella Agreement will address transfers between law enforcement authorities in the two jurisdictions. However, in the weeks after the Agreement was finalized, the European Court of Justice invalidated the U.S.-E.U. Safe Harbor, which had been widely used to immunize private entities’ transfer of E.U. residents’ personal information to the U.S. In its decision, the Court cited European residents’ inability to seek judicial remedy for privacy violations as a significant basis for its decision. While judicial redress alone will not make U.S. protections “essentially equivalent” to European law, as the European Court of Justice requires, it is a necessary condition. Thus, when the Judicial Redress Act was reported out of committee, its sponsors indicated that it was critical not only to the Umbrella Agreement, but to a revised safe harbor as well.