CLBR #216: Cam Kerry on the US-EU Privacy Conflict
Cameron Kerry returns to CLBR to talk about the US-EU Privacy Conflict. Kerry is the former General Counsel and Acting Secretary of the United States Department of Commerce, has played a leadership role in addressing many of the biggest challenges facing business today, including consumer privacy issues and the flow of information and technology across international borders. He is a thought leader on global privacy, security and information flows whose writing has appeared in The San Francisco Chronicle, The Boston Globe, TechCrunch, andForbes.com and is quoted by The Financial Times, and The Wall Street Journal among other publications.
Essentially Equivalent Report
In January, Sidley & Austin released its “Essentially Equivalent” report which, following the analysis laid out in Schrems, it shows how privacy values deeply embedded in U.S. law and practice have resulted in a system of protection of fundamental rights and freedoms that meets the test of essential equivalency.
The report stressed several key points:
- The “essentially equivalent” test outlined by the Schrems court calls for a thorough and balanced comparison of the legal order in both the EU and the US. The CJEU does not require that, to meet the “essentially equivalent” test, a level of protection be identical to that guaranteed in the EU legal order but, rather, that it be essentially equivalent in practice and effect, in substance rather than form.
- Comparison of the legal orders on government surveillance shows that US surveillance of European personal data transferred to the US is not “mass and undifferentiated” and is consistent with the legal order within the EU. The US legal order embodies a robust system of checks and balances rooted in the US Constitution, which protects the right of the people to be free from unreasonable searches and seizures, which has been interpreted to protect “expectations of privacy” from government interference. These principles are thoroughly embedded in the checks and balances imposed on the powers of the US to conduct electronic surveillance. Indeed, in a 2014 decision involving digital information on a smart phone, the US Supreme Court denied the government access to the electronic data despite acknowledging its value to law enforcement because, in the words of the Chief Justice of the United States, “[p]rivacy comes at a cost.”
- A strong body of statutory law, common law, regulatory enforcement, litigation, and privacy and data protection practices, especially when coupled with binding adherence to EU data protection principles, ensure that EU citizens whose data is transferred to the US receive protection essentially equivalent to what they receive in the EU. . . . The common principles underlying the EU and the US data protection regimes are no accident. The development of both EU and US privacy and data protection law reflect historical cross-pollination of foundational concepts of liberty and human dignity, and principles of fair information practices in the modern era of computer processing. These are reflected in the legal orders of both jurisdictions.
HOW WE GOT HERE
From the Internet Law Center’s Cyber Report
CAMERON KERRY (CON’T)
In addition to his work with Sidley & Austin, Cameron Kerry joined Governance Studies and the Center for Technology Innovation at Brookings as the first Ann R. and Andrew H. Tisch Distinguished Visiting Fellow in December 2013. He is also a visiting scholar with the MIT Media Lab.
Kerry served as General Counsel and Acting Secretary of the United States Department of Commerce, where he was a leader on a wide of range of issues laying a new foundation for U.S. economic growth in a global marketplace. He continues to speak and write on these issues, particularly privacy and data security, intellectual property, and international trade.
As General Counsel, he was the principal legal adviser to the several Secretaries of Commerce and Commerce agency heads, and oversaw the work of more than 400 lawyers across these agencies. He was a leader in the Obama Administration’s successful effort to pass the America Invents Act, the most significant overhaul of the patent system in more 150 years. As co-chair of the National Science & Technology Council Subcommittee on Privacy and Internet Policy, he spearheaded development of the White House blueprint on consumer privacy, Consumer Data Privacy in a Networked World. He then led the Administration’s implementation of the blueprint, drafting privacy legislation and engaging on privacy issues with international partners, including the European Union. He helped establish and lead the Commerce Department’s Internet Policy Task Force, which brings together agencies with expertise in the 21st Century digital economy.
He also played a significant role on intellectual property policy and litigation, cybersecurity, international bribery, trade relations and rule of law development in China, the Gulf Oil spill litigation, and many other challenges facing a large, diverse federal agency. He travelled to the People’s Republic of China on numerous occasions to co-lead the Transparency Dialogue with China as well as the U.S./ China Legal Exchange and exchanges on anti-corruption.
Before his appointment to the Obama Administration in 2009, Cameron Kerry practiced law at the Mintz Levin firm in Boston and Washington. His practice covered a range of complex commercial litigation and regulation of telecommunications. He tried cases involving significant environmental and scientific evidence issues and taught telecommunications law as an adjunct professor at Suffolk University Law School.
Prior to joining Mintz Levin, he was an associate at Wilmer Cutler & Pickering in Washington, D.C. and a law clerk to Senior Circuit Judge Elbert P. Tuttle of the United States Court of Appeals for the Fifth Circuit. During the 2004 presidential campaign, Cameron Kerry was a close adviser and national surrogate for Democratic nominee John Kerry. He has been deeply involved in electoral politics throughout his adult life. He is a magna cum laude graduate of Boston College Law School (1978), where he was winner of the school’s moot court competition and a law review editor. and a cum laude graduate of Harvard College (1972).
The Ann R. and Andrew H. Tisch Distinguished Visiting Fellows in Governance Studies are individuals of particularly noteworthy distinction. The fellowship is designed to bring distinguished visitors from government, business, journalism, and academia to Brookings to write about challenges facing the country. Kerry is the first to be named to this prestigious fellowship.
SIDLEY & AUSTIN
Sidley & Austin was founded in Chicago in 1866 and is now the 9th largest U.S. firm with offices worldwide. Sidley has a privacy practice and a blog called Data Matters.