Solving the digital policy ‘trilemma’

Digital policy-making is a lot like trying to cut through the Gordian knot.  Inherent tensions between online security, open commerce and fundamental rights can create digital “trilemmas” for policy-makers that are often difficult to reconcile. At times, more stringent privacy protections can slow online economic innovation and mask real security threats. Intel gathering and cybersecurity often come at the cost of Internet’s economic openness and user’s online anonymity. Freer, more open digital commerce – particularly in the budding Internet of things revolution – bumps up against security and personal privacy rights. The bottom line is – in many difficult cases – you can’t have it all.

In the Judicial Redress Act, Congress has the rare opportunity to cut the Gordian knot and strengthen all three. The bipartisan Judicial Redress Act – sponsored by Sens. Chris Murphy (D-Conn.) and Orin Hatch (R-Utah) –  will yield immediate security and economic dividends, all while showing our European allies that the United States is serious about safeguarding their rights. Here’s how.  

{mosads}At its most basic level, it would grant our closest allies in Europe a basic right: the ability to access to U.S. courts to sue and seek redress if their data is improperly treated by U.S. law enforcement.  Just like American citizens’ cases, European citizens’ suits can be denied. It would simply provide access. But creating a more predictable system grounded in U.S. rule of law makes sense given depth and breadth of the transatlantic digital relationship. 

Why do Europeans care? Because for EU citizens, personal data protection is a fundamental right enshrined into law at the highest level in the European Charter of Fundamental Rights, a sort of European Bill of Rights. European courts, national governments and the European Commission will – and should – viciously protect their citizens’ data and its treatment in foreign criminal systems. Post-Snowden, the misperception exists in Europe that Americans are cavalier with European data. The move would help restore digital trust and dislodge the inaccurate impression that the U.S. is a “Wild West” when it comes to treatment of Europeans’ data. 

At the same time, the law would also help U.S. law enforcement in its fight against organized crime, child pornography, human and drug traffickers, refugee smugglers and religious extremists.  The terrorist attacks in Paris and San Bernardino underscored the need to step up transatlantic law enforcement cooperation. This is especially true online.  They have those tools tantalizingly within their grasp. Six years of tough negotiations between the Justice Department and European justice authorities produced the so-called US-EU Umbrella Agreement, the text of which DoJ made public this week. The agreement will lift transatlantic data sharing cooperation in law enforcement cases providing tougher tools, better intel and more willing partners.  In short, the Umbrella Agreement is nothing short of a smart power coup. And it’s turnkey ready. Passing the Judicial Redress Act will unlock the Umbrella Agreement and give agencies like the FBI those tools.   

Finally, it would give a boost to tense talks taking place right now about the future of transatlantic data flows that fuel digital economic growth. The U.S. and EU are hashing out a new framework agreement – a so-called Safe Harbor 2.0 – that would allow American tech companies that sign on to transfer Europeans’ personal data to the U.S.  Safe Harbor 1.0 – after a 15-year run of the primary bridge for transatlantic commercial data – was invalidated by the European Court of Justice in October. The court decision stated that the Safe Harbor did not provide “adequate protection” for European citizens’ data, citing – among other things – the lack of judicial redress. The Murphy-Hatch act would clear a major road block to negotiations of a new Safe Harbor even as time is running out to restore this mechanism that over 4000 U.S. companies rely on to do business in the EU. Moreover, it would engender new good will and strengthen the U.S. hand in broader talks for a U.S.-EU trade deal. 

So the question is: Will Congress choose to flex its geo-economic muscle and pass Murphy-Hatch? Underneath all the Davos buzzwords – Internet of Things, big data, the sharing economy – lie a genuine revolution in the way American, transatlantic and global society is organized. 

The bill helps our citizens, companies and law enforcement agencies keep pace with these changes. Moreover, it undergirds the deep security, economic and values-based relationship the U.S. and EU want to have. It enjoys a broad coalition of support that includes digital rights and civil libertarian NGOs, the national security hawks and tech industry leaders. The House already passed it unanimously. After several delays, it’s time for the Senate to follow suit. 

Barker is the rapporteur for the Atlantic Council Task Force on the Transatlantic Digital Economy.