Peter Swire’s expert report was submitted on November 2, 2016 to the Irish High Court in the current litigation, where Max Schrems is challenging whether transfers of personal data under standard contract clauses are adequately protected under European Union privacy law.
Under Irish rules, Swire was an expert selected by Facebook but required to give his independent opinion about U.S. law; Swire retained complete editorial control over the content of the testimony. The decision to make the report public was made by Swire and was not the decision of Facebook.
Swire is the Elizabeth and Thomas Holder Chair at the Georgia Tech Scheller College of Business, and Senior Counsel at Alston & Bird. Attorneys at Alston & Bird supported Swire’s work on the testimony, led by Jim Harvey with lead assistance from Dan Felz, Justin Hemmings, DeBrae Kennedy-Mayo, and Suzanne Vergnolle.
Overall, the testimony explains U.S. surveillance law for a non-U.S. audience. You can download the entire testimony here, or individual chapters:
Table of Contents
Chapter 1: Summary of Testimony
Chapter 2: Biographical Chapter of Peter Swire
Chapter 3: Systemic Safeguards in the US System of Foreign Intelligence Surveillance Law
Chapter 4: Systemic Safeguards for Law Enforcement
Chapter 5: The U.S. Foreign Intelligence Surveillance Court
Chapter 6: Comparison Criteria Developed by the Oxford Team
Chapter 7: Individual Remedies in U.S. Privacy Law
Chapter 8: Individual Remedies, Hostile Actors, and National Security Considerations
Chapter 9: The Broad Scope of “Electronic Communications Service Providers” Subject to Section 702
Appendix A: Source List
Appendix B: Index of Acronyms
Chapitre 1, “Résumé de Témoinage,” est disponible en français ici. (Chapter 1 is available in French translation here).
The Irish DPC has published online all transcripts from the case, including submissions of the U.S. Government, Facebook, the DPC, and the testimony of Peter Swire.
Below is a series of essays written as brief introductions to Swire's testimony. The first essay provides a short overall summary of the testimony. Essays 2 to 5 summarize key points of the testimony:
Essay 1: The U.S. System of Safeguards for Foreign Intelligence Investigations Is Effective
A finding of inadequacy could have sweeping ramifications for EU-U.S. trade and more broadly.
Essay 2: With Its Systemic Remedies, “The U.S. Now Serves as a Baseline for Foreign Intelligence Standards”
Conclusion of team led by Oxford Professor Ian Brown after comparing U.S. safeguards to other countries.
Essay 3: Foreign Intelligence Surveillance Court’s Declassified Material Shows Effective Oversight and Enforcement
Review of declassified FISC opinions shows extensive and rigorous judicial oversight of NSA surveillance activities.
Essay 4: The U.S. Has an Extensive and Often Underappreciated Set of Remedies for Privacy Violations
There are numerous remedies under U.S. law for privacy violations, including individual and class actions against service providers who violate electronic surveillance laws.
Essay 5: Broader Implications of the Standard Contracts Clause Case
Likely application to many nations in addition to the U.S., and possibly to other lawful bases for transfer.
For more information on the Privacy & Data Security Team at Alston & Bird, visit www.alstonprivacy.com. For testimony of other witnesses in the case, visit IAPP.org.