The so-called “shield” protecting Swiss data has no legal basis in the US.

After several weeks of research and analysis of the US-Privacy Shield agreement and its implementation, this morning, the Swiss Pirate Party (PPS) notified the Federal Data Protection and Information Commissioner (FDPIC) of a discrepancy challenging the very existence of the agreement.

According to the information we have reviewed, it appears that the US government failed to publish the agreement in the US equivalent of the Swiss Federal Gazette.

In effect, this means that Swiss data is not protected under the Privacy Shield agreement.

In fact, from our research, it appears that the US government has no legal basis for approving the agreement with Switzerland. While the agreement was approved on January 11, 2017 by the Swiss Federal Council, the US government has not officially published the agreement; however, the US government has published US-EU Privacy Shield agreement. The US government’s failure to publish the agreement is in violation of the Administrative Procedures Act and the Federal Register Act, in addition to the case law as described by Larry Becraft, Esq., in the legal brief entitled, “Statutory Foundation for Federal Register Publication”.

It is widely known that President Trump seeks to undermine the Privacy Shield agreement, and as far as Switzerland is concerned, he has succeeded!

Guillaume Saouli, PPS Co-President, said:

“This situation shows once again the little effort that the Swiss authorities are expending to protect the data of Swiss citizens and our interests in this rapidly expanding global digital society!” and “The Swiss are once again left to fend for themselves against large American corporations. This situation is dangerous and unacceptable for the privacy of Swiss citizens, and also creates an extreme competitive disadvantage for Swiss companies. Swiss citizens’ privacy is not protected by commercial competitors established in the US.”

The Swiss Pirate Party demands that measures be taken to protect the interests of Swiss citizens and the business community in dismantled and scattered to the four winds due to lack of fortitude and absence of means, as already revealed in communications with the FDPIC.

Today, as the consultation on the reform of the data protection law has just ended, these two cases highlight the necessity for the FDPIC to have the ability and means to implement this mandate and guarantee protection for all of the Swiss!

Copy of Letter to Commissioner

Subject: Existence of agreements between Switzerland and the United States on Privacy Shield

Dear Commissioner,

From research conducted on Privacy Shield by the Pirate Party in the US and Switzerland, we have discovered several issues of great concern. We request that you take a position on these issues and clarify an essential question.

Does the Swiss-US Privacy Shield agreement actually exist?

In fact, during our research, it appears that the US government has no legal basis for approving the agreement with Switzerland. While the agreement was approved on January 11, 2017 by the Swiss Federal Council, the US government has not officially published the agreement; however, the US government has published US-EU Privacy Shield agreement. The US government’s failure to publish the agreement is in violation of the Administrative Procedures Act and the Federal Register Act, in addition to the case law as described by Larry Becraft, Esq., in the legal brief entitled, “Statutory Foundation for Federal Register Publication”.

http://www.lexrex.com/jml/index.php/articles-documents-and-archives/laws-writings-documents/200-statutory-foundation-for-federal-register-publication

Since the Safe Harbour agreement is no longer in force, what are the “provisional” measures you propose in order to ensure the continuity of data protection for Swiss natural and legal persons?

One of the main objects of our research was the proper functioning of the Ombudsperson at the US State Department and its various designated counterparts. We would like your views on the issues mentioned in the letter sent to the US Government Accountability Office (GAO) concerning the legal authority of the Ombudsperson and its durability. A copy of the letter sent to the GAO is attached.

Link: https://diycivics.wordpress.com/2017/04/24/letter-usgao-must-investigate-privacyshield-vacancy/

In light of the situation described in the letter sent to the GAO, can the FDPIC explain the current situation and describe the legal process in the US?

In summary, does the agreement approved on January 11, 2017 actually exist? Does its implementation have a sufficient legal basis for the protection of Swiss data?

In anticipation of your prompt reply, Commissioner, I send you my salutations,

Guillaume Saouli
Co-Chairman
Pirate Party of Switzerland

CC:

Delegation of the Swiss Parliament’s Management Committees

Swiss Federal Department of Foreign Affairs

Swiss Federal Department of Economics, Education, and Research

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This article and letter were translated from French. The original French version is https://www.partipirate.ch/2017/04/27/privacy-shield-down/

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The so-called “shield” protecting Swiss data has no legal basis in the US. After several weeks of research and analysis of the US-Privacy Shield agreement and its implementation, this morning,…