Don’t Strike Down the Safe Harbor Based on Inaccurate Views About US Intelligence Law

[Commentary] Important legal decisions should be based on an accurate understanding of the law and facts. Unfortunately, that is not the case for the Advocate General’s (AG’s) recent Opinion finding that the Safe Harbor agreement between the US and the European Union unlawful. As the US Mission to the EU has also noted, the Opinion suffers from particular inaccuracies concerning the law and practice of US foreign intelligence law, notably the PRISM program. It relies on these incorrect facts about PRISM to reach its conclusion, removing the factual basis for its overall findings.

My comments here focus on the Opinion’s incorrect description of US intelligence law and practice. In my experience as a scholar and practitioner in the field, the US has far more extensive legal rules, oversight and other checks and balances on intelligence agencies than is generally true in EU member states.

[Peter Swire is the Huang Professor of Law and Ethics at the Georgia Tech Scheller College of Business, and Senior Counsel with Alston & Bird LLP]