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With days to go until a delegation from the European Union goes to Washington to discuss Privacy Shield, the US president, Donald Trump, has finally filled vacant board appointments at US government privacy agency Privacy and Civil Liberties Oversight Board (PCLOB) with pro-National Security Agency (NSA) staff, led by new chair Adam Klein.
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The group of EU and Article 29 data regulators going to the US on 18 September have not been named. An agenda for the EU delegation has not been published, despite promises by justice commissioner Vera Jourova to consult non-government organisations and companies affected.
The EU delegation will arrive in Washington as a heated discussion takes place between senator Ron Wyden of the Senate Intelligence Committee and the new director of national intelligence, former senator Dan Coates.
Wyden has been trying to find out how much surveillance of US citizens, in America, is taking place under a paragraph of the Foreign Intelligence Surveillance Act (Fisa) called Section 702.
Adam Klein wrote an op-ed piece in late July for the Wall Street Journal, advocating the legality and use of Section 702 against Americans.
In theory, Fisa only legalises surveillance of foreigners and makes surveillance of US citizens, in America, illegal.
Coates has argued that Section 702 does allow “incidental” surveillance of Americans, but refuses to tell Wyden how many US citizens are caught up in the database the NSA has created.
In one of the few letters between the senator and the director of national intelligence that have been publicly disclosed, Coates has refused to say publicly whether Section 702 is used to capture intelligence on US citizens in a more targeted way, as to “do so would cause serious damage to national security”.
This would appear to undermine assurances about Privacy Shield given to the EU in 2016 by the previous director of national intelligence, James Clapper.
In March 2017, the Justice Committee of the European Parliament, led by chair Claude Moraes, a London Labour MEP, passed a motion raising critical questions about the US Prism programme, which has been found to carry out “mass and indiscriminate surveillance” of EU citizens, and other US surveillance programmes.