EPIC v. DOJ – Umbrella Agreement

Background

On September 8, 2015, European and US officials announced that they have concluded an agreement, the so-called Umbrella Agreement, which is a framework for transatlantic data transfer between the US and the EU. The proposed goal of the Agreement is to provide data protection safeguards for personal information transferred between the EU and the US. Despite the announcements, neither US officials nor their European counterparts made the text of the Agreement public.

On September 10, 2015 EPIC submitted expedited FOI requests to the Department of Homeland Security, Department of Justice and the State Department to obtain the secret agreement. Because of legislation pending in Congress and NGO concern about the scope of the data protection safeguards, EPIC said “there is an urgency to inform the public” about the contents of the agreement.

EPIC also filed a Freedom of Information request to DG Justice of the European Commission under EU law. The request was acknowledged by the Commission on September 14, 2015. The Commission has 15 business days to reply to the request. After EPIC’s requests, the document was made public by Statewatch.

On January 25, 2016, the Department of Justice released to EPIC an unredacated copy of the Umbrella Agreement.

EPIC’s Interest

EPIC supports the establishment of a comprehensive legal framework to enable transborder data flows. EPIC previously urged that the United States begin the process of ratification of Council of Europe Convention 108.

The federal Privacy Act of 1974 places a duty upon federal agencies that maintain personal information to protect that data. This duty and concomitant responsibilities arise from the collection of personal data. Therefore, it does not matter what the data owner’s citizenship or origin is.

EPIC has a strong interest in open government. EPIC frequently makes use of the Freedom of Information Act to obtain information from the government about surveillance and privacy policy. Public disclosure of this information improves government oversight and accountability. It also helps ensure that the public is fully informed about the activities of government. EPIC routinely files lawsuits to force disclose of agency records that impact critical privacy interests.

FOIA Documents

• Request to DHS (September 10, 2015)
• Request to State Department (September 10, 2015)
• Request to DOJ (September 10, 2015)
• Request to EU Commission (September 14, 2015)
• EU Commission Acknowledgement (September 14, 2015)
• DHS’s Response (September 21, 2015)
• EU Commission’s response to extend the agency’s time limit (October 5, 2015)
• Administrative Appeal to DHS (October 5, 2015)
• EU Commission’s final response to EPIC’s FOIA request (October 23, 2015)
• DOJ’s Final Response Letter and Full Production of Umbrella Agreement (January 25, 2016)

Legal Documents, (D.D.C., Case No. 15-1955)

• Complaint (Nov. 4, 2015)
• Entry of Default Against DOJ (Jan. 6, 2016)
• EPIC’s Motion for Default Judgment (Jan. 6, 2016)
  • Tran Declaration (Jan. 6, 2016)
• DOJ Motion for Extension of Time (Jan. 21, 2016)
• EPIC Opposition to Motion for Extension (Jan. 22, 2016)
• Joint Motion to Vacate Motion for Default (Jan. 28, 2016)
• EPIC Motion for Attorney’s Fees (April 4, 2016)
• DOJ Opposition (April 28, 2016)
• EPIC Reply (May 12, 2016)
• Memorandum Opinion on Fees (Oct. 5, 2016)
  • Order (Oct. 5, 2016)

Resources

• Letter from EPIC to Senate Judiciary Committee (Jan. 14, 2016)
• Letter from EPIC to House Judiciary Committee (Sept. 16, 2015)
• EU-US Umbrella Agreement (Released by the EU Parliament, Sept. 14, 2015).
• Umbrella Agreement, EPIC (Sept., 2015)

   

• Council of Europe Privacy Convention, EPIC (2015)

   

• EPIC Recommends Changes To Judicial Redress Act, EPIC (Sept. 16, 2015)

   

• The Privacy Act of 1974, EPIC (2015)

   

  News

   

• Judy Godoy, Watchdog Says DOJ Lost Data Pact Release Suit By Default, Law360 (Jan. 7, 2016)
• Jacob Fischler, Fortify New US-EU Data Transfer Pact, Privacy Groups Urge, Law360 (Nov. 13, 2015)
• Emily Field, Watchdog Files Suit To Make US-EU Data Agreement Public, Law360 (Nov. 5, 2015)
• What the E.U.-U.S. Umbrella Agreement Does-And Does Not-Mean for Privacy, Access (Sept. 10, 2015).