16 FEBRUARY 2022/ BY THEODORE CHRISTAKIS, KENNETH PROPP AND PETER SWIRE

Can the U.S. Government create, by non-statutory means, an independent redress authority capable of providing an effective remedy for a European person who believes that her or his rights have been infringed by an intelligence service? In this article we put forward a novel non-statutory solution that could resolve the “redress” problem in the EU/US adequacy negotiations. This solution is based on three “building blocks” inspired by methods utilized in U.S. administrative law. First, the U.S. Department of Justice should issue a binding regulation creating within that executive agency an independent “Foreign Intelligence Redress Authority” (FIRA). Second, the President should issue a separate Executive Order providing the necessary investigative powers and giving FIRA’s decisions binding effect across the intelligence agencies and other components of the U.S. government. Finally, European individuals could obtain judicial review of an independent redress decision by using the existing Administrative Procedure Act.

Our first article, published on January 31, concentrated on whether the U.S. Congress would necessarily have to enact a new statute in order to create an adequate redress mechanism. We examined political, practical, and U.S. constitutional difficulties in enacting such a statute. Based on careful attention to EU law, we concluded that relying on a non-statutory solution could be compatible with the “essential equivalence” requirements of Article 45 of the EU’s General Data Protection Regulation (GDPR), if the requisite substantive protections for redress were put into place.

This article examines, from both a U.S. and a European law perspective, measures that could address the substantive requirements, notably the deficiencies highlighted by the Court of Justice of the European Union (CJEU) in its Schrems II judgment: independence of the redress body; its ability to substantively review the requests; and its authority to issue decisions that are binding on the intelligence agencies. We discuss only the redress issues highlighted by the CJEU. We do not address here the other deficiency cited by the Court — whether U.S. surveillance statutes and procedures sufficiently incorporate principles of “necessity and proportionality” also required under EU law.

Part I of this article explains how the U.S. executive branch could create an independent administrative institution to review redress requests and complaints. The institution, which we call “FIRA”, would be similar in important ways to what in Europe is considered as an independent administrative authority, such as the several surveillance oversight/redress bodies operating in Europe and listed in the EU Agency for Fundamental Rights’ (FRA) 2017 comparative study on surveillance (p. 115 – in France, for example, the National Commission for Control of Intelligence Techniques, CNCTR). We submit that, in the U.S., such an institution could be based on a binding regulation adopted by the Department of Justice (DOJ). Despite being created by the executive branch, the independence of FIRA will be guaranteed, since leading U.S. Supreme Court precedent considers such a regulation to have binding effect and to protect members of the redress authority from interference by the President or the Attorney General. 

Next, Part II of this article assesses how the U.S. executive branch could provide the necessary investigatory powers for FIRA to review European requests and complaints and to adopt decisions binding upon intelligence agencies. This could be done through a Presidential Executive Order that the President may use to limit executive discretion. 

Finally, Part III of this article discusses the important question of whether the ultimate availability of judicial redress is necessary under EU law and whether there is a path under U.S. law to achieve it, despite the 2021 Supreme Court decision in the TransUnion case limiting standing in some privacy cases. We examine reasons why judicial review of decisions by the independent FIRA may not be required under EU law. Nonetheless, we describe a potential path to U.S. judicial review based on the existing Administrative Procedure Act.  

I. Creating an Independent Redress Authority

Based on our discussions with stakeholders, the most difficult intellectual challenge has been how a redress authority can be created within the executive branch yet have the necessary independence from it. We first present the EU criticisms of the Privacy Shield Ombudsperson approach, and then explain how a binding regulation issued by DOJ can address those criticisms satisfactorily. 

1. Identifying the problems of independence with the previous Privacy Shield mechanism

Four criteria for independence of the redress body have been identified by EU authorities in their critiques of the Ombudsperson approach included in the 2016 Privacy Shield. 

a) Protection against dismissal or revocation of the members of the redress body

A crucial measure of independence under EU law, is protection against removal of any member of the independent body. In Schrems II, the CJEU noted there was “nothing in [the Privacy Shield Decision] to indicate that the dismissal or revocation of the appointment of the Ombudsperson is accompanied by any particular guarantees” (§195), a point previously made in 2016 by the Article 29 Working Party (WP29) when it observed “the relative ease with which political appointees can be dismissed” (here, p. 51). Protection against removal is also recognized under U.S. law and a key indicator for independence.(1) 

b) Independence as protection against external intervention or pressure

Protection against external intervention is a major requirement for a redress authority, as stated by the Advocate General in his 2019 Schrems II Opinion: 

“The concept of independence has a first aspect, which is external and presumes that the body concerned is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them” (note 213).  

By contrast, the Ombudsperson in the original Privacy Shield was “presented as being independent of the ‘intelligence community’, [but] (…) not independent of the executive” (§ 337). 

c) Impartiality

In the same opinion, Advocate General Saugmandsgaard Øe stressed (and the CJEU endorsed), the importance of impartiality: “The second aspect of [independence], which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings” (note 213, emphasis added). 

d)  Relationship to the intelligence community 

In its 2015 study on surveillance, FRA noted that there is a “Goldilocks” challenge concerning the ties between redress bodies and intelligence agencies: “While ties that are too close may lead to a conflict of interest, too much separation might result in oversight bodies that, while independent, are very poorly informed” (p. 71).  In 2016, the WP29 found that the Privacy Shield solution did not appropriately respond to this challenge:

“The Under Secretary is nominated by the U.S. President, directed by the Secretary of State as the Ombudsperson, and confirmed by the U.S. Senate in her role as Under Secretary. As the letter and the Memorandum representations stress, the Ombudsperson is ‘independent from the U.S. Intelligence community’. The WP29 however questions if the Ombudsperson is created within the most suitable department. Some knowledge and understanding of the workings of the intelligence community seems to be required in order to effectively fulfil the Ombudsperson’s role, while at the same time indeed sufficient distance from the intelligence community is required to be able to act independently.” (p.49)

2. How the creation of FIRA by DOJ Regulation could fix these problems 

To date, despite insightful discussions of the challenges, we have not seen any detailed public proposals for how the U.S. executive branch might create a redress institution to meet the strict EU requirements for independence.(2) One innovation, which we understand that the parties might now be considering, could be a binding U.S. regulation, issued by an agency pursuant to existing statutory authority, to create and govern FIRA. Crucially, leading U.S. Supreme Court cases have given binding effect to a comparable regulation, even in the face of objections by the President or Attorney General.

a) Binding DOJ regulation to ensure independence of the FIRA 

The Department of Justice could issue a regulation to create FIRA and guarantee its independent functioning.  It could guarantee independence for the members of FIRA, including protections against removal, in the same fashion.

Under the U.S. legal system, such an agency regulation has the force of law, making it suitable for defining the procedures for review of redress requests and complaints. DOJ regularly issues such regulations, under existing statutory authorities, and pursuant to established and public procedures. To protect against arbitrary or sudden change, modifying or repealing the regulation would require following the same public procedural steps as enacting the regulation in the first place did.  In Motor Vehicles Manufacturers Association vs. State Farm Mutual Automobile Insurance Co., the Supreme Court held that since a federal agency had the discretion to issue a regulation initially, it would have to utilize the same administrative procedures to repeal it.

In an EU/U.S. framework for a new Privacy Shield, the U.S. Government unilaterally could commit to maintain this DOJ regulation in force, and the European Commission could reference the U.S. commitment as a condition of its adequacy decision. This would provide both to the EU and to members of FIRA a guarantee against revocation of the regulation ensuring that the authority would act independently. 

b) Supreme Court precedents protect against external intervention or pressure 

During the Watergate scandal involving then-President Richard Nixon, the Department of Justice issued a regulation creating an independent “special prosecutor” (also called “independent counsel”) within that department. The special prosecutor was designed to be independent from Presidential control, with the regulation stipulating that he could not be removed except with involvement by designated members of Congress. 

Acting within the powers defined in the regulation, the special prosecutor issued a subpoena for audio tapes held by the White House. The President, acting through the Attorney General, objected to the subpoena.  In a unanimous 1974 Supreme Court decision, United States v. Nixon, it was held that the special prosecutor’s decision to issue the subpoena had the force of law, despite the Attorney General’s objection.  The Court noted that although the Attorney General has general authority to oversee criminal prosecutions, including by issuing a subpoena, the fact that the special prosecutor had acted pursuant to a binding DOJ regulation deprived the Attorney General of his otherwise plenary power over subpoenas. 

The Supreme Court observed that “[t]he regulation gives the Special Prosecutor explicit power” to conduct the investigation and issue subpoenas, and that “[s]o long as this regulation is extant, it has the force of law” (emphasis added).  The Court concluded: 

“It is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor’s authority. But he has not done so. So long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it.”

In sum, as supported by clear Supreme Court precedent, a DOJ regulation can create a mechanism within the executive branch, so that the members of the administration must comply with its terms, even in the face of contrary instructions from the President or Attorney General. And, as stated earlier, the lasting character of the DOJ regulation creating FIRA could be guaranteed by the US Government in the EU/US agreement and be identified by the European Commission in its subsequent adequacy decision as a condition for maintaining this decision in force.

c) Impartiality

We are not aware of significant U.S. constitutional obstacles to ensuring impartiality in FIRA. DOJ appoints Administrative Law Judges (ALJ), such as for deciding immigration matters, and “[t]he ALJ position functions, and is classified, as a judge under the Administrative Procedure Act.” 

U.S. law concerning ALJ’s, including those located in DOJ, states that they are “independent impartial triers of fact in formal proceedings”.(3) In Nixon the Supreme Court reaffirmed the lawfulness of an independent adjudicatory function located within the DOJ.(4) A DOJ FIRA regulation could similarly offer guarantees in terms of the impartiality and expertise of members.

d) Relationship to the intelligence community 

Furthermore, the DOJ appears to be the executive agency best-suited to resolve the “Goldilocks” problem, mentioned above, by combining knowledge and understanding of the intelligence agencies with sufficient distance to judge their conduct independently. 

As noted, EU bodies questioned whether the Department of State, a diplomatic agency, was a “suitable department” for the redress role. The DOJ is more suitable in part because of its experience with the Watergate independent counsel and, for instance, with Immigration Judges as independent triers of fact. 

At the same time, a FIRA located within the DOJ would be well-placed to have knowledge about the intelligence community. The DOJ provides extensive oversight of intelligence activities through its National Security Division, including by issuing regular reports concerning classified activities of the Foreign Intelligence Surveillance Court. Other DOJ components, such as the Office of Privacy and Civil Liberties, also have access to classified information including Top Secret information about intelligence agency activities. In addition, an Executive Order could empower the DOJ to enlist other agencies, such as the Office of the Director of National Intelligence, to gain information from the intelligence community.

II. Creating Effective Powers for the Independent Redress Authority

A DOJ regulation creating an independent redress authority within that executive department must be accompanied by additional government-wide steps for effectively investigating redress requests and for issuing decisions that are binding on the entire intelligence community. The DOJ-issued regulation would define the interaction of FIRA with other parts of that Department.  For the overall mechanism to be effective in other parts of the U.S. government, however, the key legal instrument would be a separate Executive Order issued by the President. In issuing an EO, the President would act within the scope of his overall executive power to define legal limits, such as by requiring intelligence agencies to be bound by FIRA decisions. 

1. Identifying the problems of effectiveness concerning the previous Privacy Shield mechanism

To meet the EU requirement of effective remedial powers, the new redress system would need to have two types of effective powers that the Privacy Shield Ombudsperson lacked. 

a) Investigative Powers 

The WP29 wrote in 2016: 

“concerns remain regarding the powers of the Ombudsperson to exercise effective and continuous control. Based on the available information (…), the WP29 cannot come to the conclusion that the Ombudsperson will at all times have direct access to all information, files and IT systems required to make his own assessment” (p. 51).

In 2019, the European Data Protection Board (EDPB) likewise stated: 

“[T]he EDPB is not in a position to conclude that the Ombudsperson is vested with sufficient powers to access information and to remedy non-compliance, (…)” (§103). 

b) Decisional Powers 

In Schrems II, the CJEU stated:  

“Similarly, (…) although recital 120 of the Privacy Shield Decision refers to a commitment from the US Government that the relevant component of the intelligence services is required to correct any violation of the applicable rules detected by the Privacy Shield Ombudsperson, there is nothing in that decision to indicate that that ombudsperson has the power to adopt decisions that are binding on those intelligence services and does not mention any legal safeguards that would accompany that political commitment on which data subjects could rely” (§196).

The EDPB similarly concluded in 2019:

“Based on the available information, the EDPB still doubts that the powers to remedy non-compliance vis-à-vis the intelligence authorities are sufficient, as the ‘power’ of the Ombudsperson seems to be limited to decide not to confirm compliance towards the petitioner. In the understanding of the EDPB, the (acting) Ombudsperson is not vested with powers, which courts or other similarly independent bodies would usually be granted to fulfil their role” (§102).

2. How a Presidential Executive Order Could Confer These Powers upon FIRA 

These passages describe key EU legal requirements for a new redress system. President Biden could satisfy them by issuance of an Executive Order (EO).  The American Bar Association has published a useful overview explaining that an EO  is a “signed, written, and published directive from the President of the United States that manages operations of the federal government.” EOs “have the force of law, much like regulations issued by federal agencies.”  Once in place, only “a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect.”

As a general matter, the President has broad authority under Article II of the Constitution to direct the executive branch. In addition, the Constitution names the President as Commander-in-Chief of the armed forces, conferring additional responsibilities and powers with respect to national security. The President’s powers in some instances may be limited by a properly enacted statute, but we are not aware of any such limits relevant to redress.

Not only does the President enjoy broad executive powers, but he or she also may decide to limit how he or she exercises such powers through an EO which, under the law, would govern until and unless withdrawn or revised. Thus, the President would appear to have considerable discretion to instruct the intelligence community, by means of an EO, to cooperate in investigations and to comply with binding rulings concerning redress.

As with the DOJ regulation, the U.S. Government could commit in the EU/US adequacy arrangement to maintain this EO in force. But how could the EU and the general public have confidence that the EO is actually being followed by intelligence agencies? First, FIRA will be able to assess whether this is the case, backed by an eventual provision in the Presidential EO fixing penalties for lack of compliance with its orders (similarly as legislation in European countries fixes penalties for failure to comply with the orders of equivalent redress bodies – for an example see art. L 833-3 of the French surveillance law). Furthermore, U.S. intelligence agencies are already subject to parliamentary oversight, including on classified matters, by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. Oversight might also be performed by other governmental actors that have access to classified materials, such as an agency official called the Inspector General or the Civil Liberties and Privacy Office, or by the independent Privacy and Civil Liberties Oversight Board (whose new Director, Sharon Bradford Franklin, recently confirmed by the Senate, is known for her commitment to strong surveillance safeguards and oversight). Oversight may be performed at the Top Secret or other classification level, with unclassified summaries released to the public. 

III. Creating Judicial Review of the Decisions of the Independent Redress Authority

Finally, we turn to whether and how decisions of FIRA may be reviewed judicially. We first explain why judicial review in these circumstances may not be required under EU law.  Nonetheless, to minimize the risk of invalidation by the CJEU, we set forth possible paths for creating U.S. judicial review.

1. Reasons that judicial redress is not necessarily required 

There are at least four reasons to believe that EU law does not necessarily require judicial redress if FIRA is independent and capable of exercising the quasi-judicial functions described above by adopting decisions binding on intelligence agencies.

First, as explained in our earlier article, Article 13 of the European Convention on Human Rights (ECHR) may be the appropriate legal standard for the European Commission to use in deciding upon the “essential equivalence” of third countries for international data transfer purposes.  Article 13 only requires an independent “national authority,” thus a non-judicial body could suffice.

Second, the Advocate General in Schrems II seemed to give the impression that judicial review should only be required in a case where the redress body itself is not independent: 

“in accordance with the case-law, respect for the right guaranteed by Article 47 of the Charter thus assumes that a decision of an administrative authority that does not itself satisfy the condition of independence must be subject to subsequent control by a judicial body with jurisdiction to consider all the relevant issues. However, according to the indications provided in the ‘privacy shield’ decision, the decisions of the Ombudsperson are not the subject of independent judicial review.” (§340, emphasis added)

Since FIRA, unlike the Ombudsperson, will not only enjoy independence but also will exercise quasi-judicial functions by adopting decisions binding on intelligence agencies, separate judicial redress may not be required.

Third, this is exactly what seems to be happening in practice in EU Member States themselves. FRA noted in its 2017 comparative study on surveillance that, in most European countries, redress bodies are non-judicial bodies. It also observed that such non-judicial remedies appear better than judicial ones, because their procedural rules are less strict, proceedings are faster and cheaper, and non-judicial avenues generally offer greater expertise than judicial mechanisms. Furthermore, FRA found that “across the EU only in a few cases can decisions of non-judicial bodies be reviewed by a judge” (ibid., p.114 – and table pp.115-116). Requiring the U.S. to provide judicial redress would thus be more than what exists in many Member States.(5) 

Fourth, these observations are even more relevant when one focuses on international surveillance. In France, for instance, an individual may file complaints with the Supreme Administrative Court (Conseil d’Etat) on the basis of the domestic surveillance law of July 2015. There is no possibility to do so under the international surveillance law of November 2015, however, since that law gives only the CNCTR, an administrative authority, the power to initiate (under some conditions) proceedings in the Conseil d’Etat – but does not confer this right directly upon an individual.(6)

Of course, actual practice under Member States law does not necessarily mean that a third country’s similar practices meet the “essential equivalence” standard of EU fundamental rights law, since the relevant comparator seems to be European Law standards – not Member States’ practices which do not always necessarily meet these standards.(7) Nonetheless, demanding from the U.S. a much more elaborate process than what already exists for international surveillance in most EU Member States might be complicated, particularly if there is an effective independent administrative regime in the U.S. exercising quasi-judicial functions.

2. Ultimate judicial redress will however help ensure meeting CJEU requirements

Despite these indications that European law may not require judicial redress, we acknowledge that the position of the CJEU on this point remains ambiguous.  

As indicated in our first article, the CJEU in Schrems II expressly used the term “body,” giving the impression that an independent national administrative authority (in conformity with the requirements of Art. 13 ECHR) could be enough to fulfill the adjudicatory function. As we explained, this is how the EDPB seems to have read Schrems II in its 2020 European Essential Guarantees Recommendations. Long-time EU data protection official Christopher Docksey concurs as well. 

However, it is also true that the Schrems II judgment contains multiple references to judicial redress. It refers to “ the premiss [sic] that data subjects must have the possibility of bringing legal action before an independent and impartial court ” (§194); “the right to judicial protection” (ibid.); “data subject rights actionable in the courts against the US authorities” (§192); “the judicial protection of persons whose personal data is transferred to that third country” (§190); and “the existence of such a lacuna in judicial protection in respect of interferences with intelligence programmes” (§191). It is not clear whether these statements should also apply (following the Advocate General’s logic) to an independent redress body such as FIRA capable of exercising quasi-judicial functions, in contrast to the Ombudsperson examined by the CJEU. Nevertheless, the CJEU judgment might be read as requiring at least some form of ultimate judicial control of a redress authority’s decisions. This also appears to be the interpretation of a senior Commission official. 

In light of these statements, it would be prudent for the U.S. to provide for some form of ultimate judicial review of FIRA decisions, to increase the likelihood of passing the CJEU test in an eventual Schrems III case.  

3. A path to ultimate judicial review of FIRA decisions

As we explained in our first article, the U.S. constitutional doctrine of standing poses a major hurdle in creating a pathway to judicial redress. In the 2021 TransUnion case, the Supreme Court held that plaintiffs incorrectly identified by a credit reporting agency as being on a government terrorism watch list had not shown the required “injury in fact”. This lack of injury in fact, and thus lack of standing, existed even though the underlying statute appeared to confer the right to sue. While one might find this U.S. constitutional jurisprudence unduly restrictive, any new Privacy Shield agreement must take it into account.

There might be, however, another way to provide an individual with judicial redress. An unsatisfied individual could appeal to a federal court an administrative disposition of a redress petition on the grounds that FIRA has failed to follow the law. In such a case an individual would not be challenging the surveillance actions of intelligence agencies (for which injury in fact may be impossible to satisfy) as such; instead, the suit would allege the failure of an independent administrative body (FIRA) to take the actions required by law.  

As Propp and Swire have written previously, one useful precedent is the U.S. Freedom of Information Act (FOIA), under which any individual can request an agency to produce documents, without first having to demonstrate that he or she has suffered particular “injury in fact”. The agency is then required to conduct an effective investigation and to explain any decision not to supply the documents. After the agency responds, the individual may appeal the decision to federal court. The judge then examines the quality of the agency’s investigation to ensure compliance with law, and the judge can order changes in the event of mistakes by the agency.

Analogously, a European individual, unsatisfied by FIRA’s investigation and decision, could bring a challenge in court. Taking into consideration that FOIA concerns a distinct question,  the appeal against FIRA’s decisions would be based upon the umbrella U.S. Administrative Procedure Act (APA). The APA provides generally for judicial review of an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Since both a regulation and an Executive Order have the force of law, an APA-based appeal could examine whether the FIRA decision and its implementation was “in accordance with law.” Since the APA applies generally, it could operate in these circumstances without need for an additional federal statute. In addition, U.S. federal courts deciding APA-based appeals already have methods for handling classified national security information. For instance, they access classified information under the Classified Information Procedures Act (CIPA).

Including judicial review under the APA would be a good faith effort by the U.S. government to respond to ultimate EU law concerns. However, since the FIRA approach has not been judicially tested, some legal uncertainty concerning standing to bring the APA suit in federal court would remain. FOIA practice provides a good legal basis for meeting the standing requirement through challenging agency action itself, but TransUnion highlighted the level of privacy injuries which must be shown to enable a decision in federal court.  

Conclusion

In these two articles, we have sought to examine rigorously and fully the requirements of EU law with respect to redress. We also have examined U.S. constitutional law, explaining both the difficulties surrounding some solutions (for instance the problem of standing for judicial redress) and the opportunities created by some precedents (such as the protection offered to independent investigative bodies by decisions of the U.S. Supreme Court).

We are not aware of any other published proposal that wrestles in such detail with the complexity of EU and U.S. law requirements for foreign intelligence redress. We hope that our contribution helps fill this gap and presents a promising path permitting resolution of the “redress challenge” in the EU/US adequacy negotiations.

Much will depend on the details of construction and implementation for this protective mechanism. What our articles contribute is the identification of three fundamental building blocks on which a solid and long-lasting transatlantic adequacy agreement could stand. We have shown that there is a promising way to create, by non-statutory means, an independent redress authority and to provide the necessary investigative and decisional powers to respond to redress requests by European persons. We also suggest a way to successfully address the problem of standing and thereby to provide for an ultimate possibility of judicial control. Using these building blocks to create an effective redress mechanism could enable the U.S. and the EU not only to establish a solid transatlantic adequacy regime capable of resisting CJEU scrutiny but also to advance human rights more broadly.

Notes

(1) In 2020, as discussed here, the Supreme Court addressed the President’s removal power in the Siela Law LLC case, finding unconstitutional Congress’ establishment of independence for an agency head. At the same time, the Court reaffirmed that protections against removal can exist for “inferior officers” (roughly, officials appointed through a civil service process rather than by the President) and for multi-member bodies. Either or both of these categories may apply to FIRA members. In 2021, the Supreme Court, in U.S. v. Arthrex, struck down a system of independent Administrative Patent Judges. The approach in our article would be different since the President here issues an executive order, and thus the President serves as the “politically accountable officer” required by the Supreme Court in Arthrex.

(2) More specifically, there have been proposals for providing redress for surveillance conducted pursuant to Section 702 FISA, such as here and here. However, an additional “thorny issue is whether international surveillance, conducted by US intelligence agencies outside the territory of the US on the basis of Executive Order 12333 (EO 12333) should be (or not) part of the adequacy assessment.” Although arguments exist under EU law that redress for EO 12333 surveillance might be excluded from the assessment, this article proceeds on the understanding that the current negotiations will only succeed if EO 12333 surveillance is covered as well. We are not aware of any published proposal that would do so, and seek in this article to present such an approach. For example, the proposal here would apply to requests for redress concerning surveillance conducted under EO 12333, such as programs recently declassified by the U.S. government.

(3) It appears that terms such as “adjudication” and “court” may be understood somewhat differently in the U.S. compared with the EU, creating a risk of confusion in proposals concerning redress. Under U.S. law, many federal agencies, including the Federal Trade Commission and Department of Justice, routinely conduct what is called “adjudication.” Many federal agencies have Administrative Law Judges, defined by the U.S. government as “independent impartial triers of fact in formal proceedings.”  By contrast, in Europe, “courts” and “judges” generally exist outside of the Executive. Therefore, our discussion of FIRA avoids words such as “adjudication” that may be understood differently in different legal systems.

(4) In the 1954 case, Accardi v. Shaughnessy, the Attorney General by regulation had delegated certain of his discretionary powers to the Board of Immigration Appeals. The regulation required the Board to exercise its own discretion on appeals for deportation cases. As noted in U.S. v. Nixon, the Supreme Court in Accardi had held that, “so long as the Attorney General’s regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations.”

(5) For a recent description of the German system, see here by Daniel Felz.

(6) This finding was confirmed in a June 2018 decision by the Conseil d’Etat following a request introduced in this court by the Member of the European Parliament Sophie In ’t Veld (analysis here). The Court also rejected the possibility for the claimant to challenge indirectly an alleged misuse of power resulting from the failure of the chairman of the CNCTR to refer the matter to the Council of State. However, as stated by the CNCTR (here, at 46) this is one of the points appearing in the (no less than) 14 challenges currently pending at the ECHR against the French surveillance laws.

(7) See for instance this study by I. Brown and D. Korff arguing that “the EU institutions should stand up for the rule of law and demand the member states and third countries bring their practices in line with those standards”  (at 111).

31 JANUARY 2022/ BY THEODORE CHRISTAKIS, KENNETH PROPP AND PETER SWIRE

Must the U.S. Congress change statutory law to solve the major issue of “redress” in the EU-US adequacy negotiations? This is a crucial question, especially since a series of political, pragmatic and even legal/constitutional difficulties mean that the U.S. might not be able to come up with a short-term statutory solution for redress. In this article we analyse this question for the first time in detail, and argue that, provided the U.S. is able to address the deficiencies highlighted by the Court of Justice of the European Union (CJEU) in its Schrems II judgment (independence of the redress body; ability to substantively review the requests; and authority to issue decisions that are binding on the intelligence agencies), then relying on a non-statutory solution could be compatible with the “essential equivalence” requirements of Article 45 of the EU’s General Data Protection Regulation (GDPR). In a second, forthcoming article, we set forth specific elements of a novel non-statutory solution and assess whether it would meet the substantive European legal requirements for redress.

The CJEU issued its Schrems II judgment in July, 2020, invalidating the EU/U.S. Privacy Shield and creating uncertainty about the use of Standard Contractual Clauses (SCCs) for transfers of personal data to all third countries (see analysis here, here, here, here and here). In light of the legal uncertainty and the increasing tensions concerning transatlantic data transfers resulting from the intensification of enforcement actions by European data protection authorities (DPAs) since Schrems II (such as this and this), there is both strong reason to reach a new EU/U.S. agreement and also a stated willingness of both sides to do so.  The European Commission, understandably, has emphasized though that there is no “quick fix” and that any new agreement must meet the full requirements of EU law.

This article focuses on one of the two deficiencies highlighted by the CJEU: the need for the U.S. legal system to provide a redress avenue accessible to all EU data subjects. We do not address here the other deficiency– whether U.S. surveillance statues and procedures sufficiently incorporate principles of ‘necessity and proportionality’ also required under EU law.

We concentrate our inquiry, from both a U.S. and a European law perspective, on whether the U.S. Congress would necessarily have to enact a new statute in order to create an adequate redress mechanism. Part I of this article explains the pragmatic and political reasons why it would be difficult to adopt a new U.S. statute, and especially to do so quickly. Part II examines the U.S. constitutional requirements for “standing”, and explains the legal difficulties and uncertainty concerning proposals, such as the one advanced by the American Civil Liberties Union (ACLU), to provide redress through an individual action in U.S. federal courts. Part III then addresses European law concerning whether a statute is necessary, concluding that the substance of the protections of fundamental rights and respect of the essence of the right to an effective remedy are the key considerations, rather than the form by which an independent and effective redress mechanism would be created.

This article will be followed by a second article exploring whether a non-statutory solution for redress is capable of satisfying the strict substantive standards required by EU law.

I. Political Difficulties of an Immediate Statutory Approach to Redress

There are important advantages to enacting a new U.S. statute to provide redress:

• There is greater democratic legitimacy if the legislature passes a statute.
• A law can set limits on Executive discretion that only may be changed by a subsequent statute.
• A law can fix in a stable, permanent and objective way the rules and procedures for the appointment of the members of the redress body, the duration of their mandate, and guarantees concerning their independence.

However, there are strong pragmatic and political reasons why it would be difficult to enact a new statute in the short term to create a new redress mechanism.

• First, it is no secret that the U.S. Congress currently finds it difficult to pass legislation generally, with partisan battles and procedural obstacles slowing passage of even essential legislation. As Politico recently reported, “it is increasingly unlikely that Congress will pass any digital-focused bills before lawmakers shut down ahead of November’s midterms”.
• Second, legislative reform of U.S. surveillance laws is a particularly complex and contentious issue. The national security community in the U.S. has little appetite for sweeping reforms, and even a strong push from the White House may not be sufficient to move such legislation through Congress. In Europe as well, substantial reform of surveillance laws requires a lot of time to seek the necessary political consensus (see for instance this).[i]
• Third, the international dimensions of a redress reform make legislation even more difficult. If a new redress mechanism benefits only EU data subjects, then it is hard to explain to Congress why they should get greater rights than Americans. On the other hand, if redress rights were also to be conferred on U.S. data subjects, then a novel and complex set of institutional changes to the overall U.S. surveillance system would be needed.
• Fourth, it would be difficult for U.S. legislators to vote for a statute without knowing in advance whether the CJEU will accept it as good enough.
• Fifth, Congress historically has been reluctant to regulate in great detail how the President conducts foreign policy and protects national security. For instance, Congress has adopted detailed statutes (such as the Foreign Intelligence Surveillance Act, FISA)) concerning “compelled access”, e.g. how intelligence agencies can request data from service providers. By contrast, it has rarely enacted any statute that applies to “direct” surveillance conducted outside of the U.S. under the standards of Executive Order (EO) 12,333. Furthermore, specific actions under that Executive Order have never, so far as we know, been subject to review by federal judges.

For these reasons, we believe at a pragmatic level that it would be extremely difficult for Congress to promptly pass legislation to provide redress to EU persons. By contrast, if an adequate fix to the redress problem can be created at least in large part without new legislation, then it would be considerably easier for Congress subsequently to enact a targeted statute ratifying the new mechanism, perhaps adding other provisions to perfect an initial non-statutory approach. That sort of legislation is far easier to enact than writing a law in Congress from a blank page.

II. Constitutional Difficulties for a U.S. Statutory Approach to Redress: The Problem of Standing

These political and pragmatic reasons alone would justify U.S. government and European Commission negotiators seeking to address the redress deficiencies highlighted in Schrems II through a non-statutory solution. But, in addition, there is a constitutional dimension. The U.S. Constitution establishes a “standing” requirement as a prerequisite to a case being heard before judges in the federal court system. Any new U.S. redress mechanism must be consistent with the U.S. Constitution, just as it must meet EU fundamental rights requirements.

U.S. standing doctrine derives from Article III of the U.S. Constitution, which governs the federal court system. The federal judicial power extends only to “cases” and “controversies” – meaning that there has to be an “injury in fact” in order to have a case heard. A related doctrine is the ban on issuance of “advisory opinions” by federal judges, a position of the Supreme Court dating back to the first President, George Washington, and defined most clearly in Muskrat v. United States. In sum, a statute that creates a cause of action in the federal courts is unconstitutional unless it meets the requirements of standing and injury in fact, and does not violate the prohibition on advisory opinions.

The ACLU in 2020 called for a “standing fix” to enable suit in federal court “where a person takes objectively reasonable protective measures in response to a good-faith belief that she is subject to surveillance.” However, since the right to redress under European law also exists for individuals who did not take protective measures, the proposal seems too narrow to meet the CJEU requirements.

A second difficulty with the ACLU approach is that the Supreme Court made standing related to privacy injuries even more difficult to establish in its TransUnion LLC v. Ramirez decision in June, 2021. As discussed here, the majority in that case made it significantly more difficult for privacy plaintiffs henceforth to sue in federal court. The Court restated its 2016 Spokeo case that a plaintiff does not automatically satisfy “the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” More bluntly, the Court stated: “An injury in law is not an injury in fact”. [ii] The majority in TransUnion found “concrete harm” for some plaintiffs but not others. Even individuals whose credit histories were badly mistaken – stating they were on a government list as “potential terrorists” – did not enjoy a right of action created by statute. In sum, there would be substantial legal uncertainty surrounding a U.S. statute conferring upon EU data subjects the right to go straight to U.S. courts to get redress (for a similar conclusion see here).

The standing objection applies only to direct access to federal courts, and not to an independent non-judicial redress authority. However, Congress might be reluctant to intervene ex nihilo in a field such as “direct” foreign surveillance conducted under EO 12,333, which traditionally belongs to the Executive power under the U.S. Constitution. Congress might be more willing to act and endorse by statute an effective redress mechanism if, as a first step, the Executive branch itself had first created such an independent non-judicial redress authority within the Executive branch. In any case, such a statute does not appear to be a necessary precondition under U.S. law for creating a redress system

III. Is a Non-Statutory Approach to Redress Compatible with European Law?

Since the U.S. government might not be able to produce a short-term statutory solution for redress, the question then arises as to whether a non-statutory approach would be acceptable under EU law. In order for the European Commission to be able to issue an adequacy decision under Article 45 of the GDPR, the U.S. must ensure an “adequate” level of protection.

If the U.S. is able to address by non-statutory means the deficiencies highlighted by the CJEU in Schrems II (mentioned above), then such a solution could be compatible with the “essential equivalence” requirements of Article 45 of the GDPR. We defer for now the question of whether a non-statutory path would indeed be able to address these substantive issues, instead focusing only on whether a non-statutory approach in principle is compatible with European law.

A. The Starting Point: The Right to Effective Remedy Under European Human Rights Law

What we call “redress” in the context of transatlantic adequacy negotiations corresponds to the “right to effective remedy” under European law. Article 47(1) of the Charter of Fundamental Rights of the European Union (“Charter”) states that:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”

The official explanations of Article 47 make clear that this article is “based on Article 13 of the European Convention of Human Rights” (ECHR), according to which:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A comparison of the two articles reveals that in EU law the protection is more extensive than in ECHR law, since the former guarantees the right to an effective remedy before a “tribunal” while the latter only refers to a “national authority”. The term “tribunal” seems to refer to a judicial body, as the official explanation suggests. This is confirmed by reference to non-English language versions of Article 47(1), which translate the word “tribunal” as “court” (e.g.“Gericht” in German and “Gerecht” in Dutch). It is also evident that neither Article 47(1) of the Charter nor Article 13 of the ECHR require that a redress body be created by statute.

 However, Article 47 (2) of the Charter adds additional, complicating requirements.:

“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented”.

As the official explanations point out, this second paragraph “corresponds to Article 6(1) of the ECHR”, which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

Both Article 47(2) of the Charter and Article 6(1) of the ECHR thus require “an independent and impartial tribunal established by law”. Yet, what is the exact relationship between the provisions on “effective remedy” (Article 47(1) of the Charter and Article 13 of the ECHR), and those on “a fair and public hearing by independent and impartial tribunals established by law” (Article 47(2) of the Charter and Article 6(1) of the ECHR)?

A restrictive analysis would regard the two sets of articles as entirely interlinked, in which case redress bodies would always have to be “established by law”.

A second more flexible and plausible interpretation would maintain that this latter set of requirements constitutes lex specialis in relation to the former; in other words, the “right to effective remedy” (“redress”) is broader than the “right to a fair trial”. This interpretation finds support in the ECHR, which textually separates the two sets of rights and requirements (Articles 13 and 6(1)). It is also confirmed by the official guide to Article 13 which states that “Article 6 § 1 of the Convention is lex specialis in relation to Article 13” (here, at 41), and by the fact that Article 6(1) is limited in scope to civil rights and criminal charges. It therefore would be difficult to merge the obligation of states to put in place an “effective remedy” with the “established by law” requirement, as this latter requirement only concerns the right to a fair trial before a “tribunal” under Article 6(1) – and not the broader right of redress before a “national authority” under Article 13. It seems then that, at least under the ECHR, a redress body need not always be a judicial body nor be “established by law”, provided that it satisfies the substantive requirements of the “right to effective remedy”. As we will see, the standards of the ECHR have always been particularly relevant for the European Data Protection Board (EDPB) in assessing the “essential equivalence” of “redress” mechanisms under Article 45 of the GDPR.

B. Flexibility Introduced by the “Essentially Equivalent” Standard of EU Data Protection Law

A flexible interpretation of the “effective remedy” requirement is also supported by the “essential equivalence” standard of the GDPR for third countries.

In Schrems I, the Court clearly acknowledged that “the means to which [a] third country has recourse, [… ] for the purpose of ensuring such a level of protection may differ from those employed within the European Union, [… ] those means must nevertheless prove, in practice, effective in order to ensure protection essentially equivalent to that guaranteed within the European Union” (§74 of the October 6, 2015 judgment, emphasis added).

The CJEU Advocate General emphasised in his 2019 Schrems II Opinion that the “essentially equivalent” standard “does not mean that the level of protection must be ‘identical’ to that required in the Union”. He explained that:

“It also follows from that judgment, in my view, that the law of the third State of destination may reflect its own scale of values according to which the respective weight of the various interests involved may diverge from that attributed to them in the EU legal order. Moreover, the protection of personal data that prevails within the European Union meets a particularly high standard by comparison with the level of protection in force in the rest of the world. The ‘essential equivalence’ test should therefore in my view be applied in such a way as to preserve a certain flexibility in order to take the various legal and cultural traditions into account” (§§ 248-249, emphasis added).

The EDPB previously had endorsed this flexible interpretation of the elements for adequacy. In its 2016 Opinion on Privacy Shield, for instance, the EDPB’s predecessor (WP29) emphasised that:

“the WP29 does not expect the Privacy Shield to be a mere and exhaustive copy of the EU legal framework […]. The Court has underlined that the term ‘adequate level of protection’, although not requiring the third country to ensure a level of protection identical to that guaranteed in the EU legal order, must be understood as requiring the third country in fact to ensure, by reason of its domestic law or its international commitments, a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union [… ]” (p. 3).

It is precisely this flexible approach that allowed EU authorities to set aside the requirement that a redress body should be a “tribunal” – despite clear terms to the contrary in Article 47(1) of the Charter. As the EDPB noted in its Recommendations 02/2020 on the European Essential Guarantees for surveillance measures of November 10, 2020 (§47): “an effective judicial protection against such interferences can be ensured not only by a court, but also by a body which offers guarantees essentially equivalent to those required by Article 47 of the Charter” (emphasis added). The EDPB noted that the CJEU itself “expressly” used the word “body” in §197 of Schrems II. Indeed, in all its extant positions on U.S. redress mechanisms, the EDPB has recognised that the applicable standards equate with those in Article 13 of the ECHR, which “only obliges Members States to ensure that everyone whose rights and freedoms are violated shall have an effective remedy before a national authority, which does not necessarily need to be a judicial authority” (ibid, §46, emphasis added).

Therefore, provided that the U.S. redress mechanism meets the substantive requirements of Article 13 ECHR as cited in Schrems II and the EDPB opinions, a judicial body will not be necessarily required, and an “established by law” standard need not be applied in order to meet the “essential equivalence” test. As the astute European legal observer Chris Docksey concluded:

“This could be an opportunity for the CJEU to give meaning to the difference between essential equivalence and absolute equivalence mentioned above when deciding on the standard of individual redress to be applied in the specific case of international transfers. If the content of the right under Article 47 is ensured, then the form should not be an obstacle” (emphasis added).

C. Interpreting “Law” in a Substantive, Not Formal, Sense

European human rights law seems, in fact, to prioritise substance over form even in situations that go beyond an “essential equivalence” assessment. This can be shown by examining interpretations of the “in accordance with the law” requirement found in the ECHR, the Charter and several fundamental EU data protection sources of law, including the GDPR.

ECHR articles concerning human rights, including Article 8 (right to privacy), stipulate that some restrictions to these rights may be acceptable provided they are “in accordance with the law” and “necessary in a democratic society” in order to protect certain legitimate interests (such as national security, public safety, or the prevention of disorder or crime). Similarly, Article 52 of the Charter requires that: “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law (…)”.

Both the Convention and the Charter, however, interpret the term “law” in a flexible way. The ECtHR, for instance, has emphasised on multiple occasions that:

“[A]s regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower ranking statutes and regulatory measures (…), and unwritten law” (Sanoma Uitgevers B.V. v. the Netherlands, 2010, § 83, emphasis added). See also Sunday Times (No. 1) v. the United Kingdom, 1979, §47).

Similarly, in EU data protection law, both the Law Enforcement Data Protection Directive (LED) and the GDPR also understand the term “law” in its substantive sense. According to Recital 33 of the LED, for instance:

“Where this Directive refers to Member State law, a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to requirements pursuant to the constitutional order of the Member State concerned (…)” (emphasis added).

Further, Recital 41 of the GDPR provides:

“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to requirements pursuant to the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the case-law of the [CJEU] and the European Court of Human Rights” (emphasis added).

This flexible interpretation of the term “law” in the data protection context for assessing the incursion of state interests on fundamental rights is formally separate from the requirement in Article 47(2) of the Charter that a tribunal be “previously established by law”. However, this analytic flexibility is consistent with how EU bodies have interpreted the “essentially equivalent” standard, including in the context of the Privacy Shield. It therefore supports the conclusion that a U.S. decision to put in place an independent and effective redress mechanism for surveillance would satisfy the requirements of European law even if it does not involve the adoption of a statute. This conclusion is also supported by the European DPAs previous positions concerning the Privacy Shield Ombudsperson.

D. The CJEU and EU DPAs Did Not Object to Non-Statutory Redress

The fact that the Privacy Shield Ombudsperson was not created by statute did not seem to be a primary concern for either the CJEU or the EDPB in assessing whether this mechanism offers  “essentially equivalent” protection to European law.

In Schrems II the Court did not identify as a deficiency that the Ombudsperson mechanism was not created by statute. Rather, the problems detected were that there was “nothing in [the Privacy Shield Decision] to indicate that the dismissal or revocation of the appointment of the Ombudsperson is accompanied by any particular guarantees” and, also, that there was “nothing in that decision to indicate that the ombudsperson has the power to adopt decisions that are binding on those intelligence services (…)” (§§ 195-196). Thus, provided there is a way to fix these deficiencies by non-statutory means, the new redress solution could pass the “essential equivalence” test.

The EDPB also seems to support this argument. In its 2016 Opinion on Privacy Shield, the WP29 began by stating that:

“in addition to the question whether the Ombudsperson can be considered a ‘tribunal’, the application of Article 47 (2) Charter implies an additional challenge, since it provides that the tribunal has to be ‘established by law’. It is doubtful however whether a Memorandum which sets forth the workings of a new mechanism can be considered ‘law’” (p. 47).

The WP29 therefore seemed to link Articles 47(1) and 47(2). However, it did not appear to consider the legal form by which the Ombudsperson was created as an insuperable obstacle. It stated:

“As a consequence – with the principle of essential equivalency in mind – rather than assessing whether an Ombudsperson can formally be considered a tribunal established by law, the Working Party decided to elaborate further the nuances of the case law as regards the specific requirements necessary to consider ‘legal remedies’ and ‘legal redress’ compliant with the fundamental rights of Articles 7, 8 and 47 Charter and Article 8 (and 13) ECHR” (ibid., emphasis added).

The WP29 then went on to analyse the requirements of European law concerning the “right to effective remedy”, focusing primarily on the case law of the ECtHR, and concluded that the Ombudsperson did not meet these requirements, essentially for the same reasons mentioned by the CJEU in the Schrems II Judgment.

In their subsequent assessments of Privacy Shield, the WP29 and the EDPB arrived at the same conclusion. They did not consider that the means by which the Ombudsperson was created represented an obstacle to passing the “essentially equivalent” test. On the contrary, the EDPB “welcomed the establishment of an Ombudsperson mechanism as a new redress mechanism” (see for instance here, §99) and repeated that “having analysed the jurisprudence of the ECtHR in particular”, it “favored an approach which took into account the powers of the Ombudsperson” (see here, p.19).

Similarly, the European Data Protection Supervisor (EDPS) did not oppose the creation of the Ombudsperson on the grounds that it was done in a non-statutory way. On the contrary he argued that “in order to improve the redress mechanism proposed in the national security area, the role of the Ombudsperson should also be further developed, so that she is able to act independently not only from the intelligence community but also from any other  authority” (here, at 8, emphasis added). 

Conclusion

In sum, European law is flexible in interpreting whether the United States must adopt a new statute to meet redress requirements, especially when the question is viewed through the “essential equivalence” prism of data protection. Substance prevails over form. It remains true that a statutory approach would in abstracto be the easiest way for the United States to establish a permanent and independent redress body for effectively reviewing complaints and adopting decisions that bind intelligence services. However, when one takes into consideration the political, practical and constitutional difficulties confronting negotiators, it makes sense to achieve the same results in a different way.

In a second article, to be published shortly, we will detail specific elements of a non-statutory solution and assess whether it would meet the substantive European requirements on redress.

[i] As this report shows even in a country like Germany, particularly sensitive to intelligence law questions, its major Signals Intelligence (SIGINT) reform did not provide any judicial redress options for non-Germans: “There is no legally defined path for foreign individuals, such as journalists abroad, who want to find out if their communications have been collected in SIGINT operations and, if so, to verify whether the collection and processing of their data was lawful. What is more, the legislators opted to explicitly waive notification rights for foreigners regarding the bulk collection of their personal data.” (p. 63)

[ii] The European Court of Human Rights has developed jurisprudence that is more flexible than U.S. standing law in terms of who may bring a suit. European human rights law accepts since Klass and Others v. Germany case (1978) that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of legislation permitting secret measures of surveillance, without having to allege that such measures were in fact applied to him or that that he has been subject to a concrete measure of surveillance (the famous theory of “potential victim” of a human rights violation, see here, paras 34-38 and here, p. 15 for an updated analysis). Notwithstanding this greater flexibility in European law, we reiterate that the limits on U.S. standing are a matter of U.S. constitutional law, which cannot be overruled by a statute enacted by Congress.