Trans-Atlan­tic Data Pri­va­cy Frame­work: Exe­cu­ti­ve Order expec­ted next week

One Report of the news por­tal Poli­ti­co Accor­ding to the White Hou­se next weekExe­cu­ti­ve Order on trans­at­lan­tic data trans­fers publish. The report is based on unof­fi­ci­al state­ments from the White Hou­se. This would be fol­lo­wed by a rati­fi­ca­ti­on pro­cess by the Euro­pean Com­mis­si­on, which is expec­ted to last until around March 2023.

The Exe­cu­ti­ve Order is inten­ded to Descri­be the sub­ject of the moni­to­ring acti­vi­ties in more detail. Also a inde­pen­dent court seems to be in the room.

Thus, the Exe­cu­ti­ve Order addres­ses the two cen­tral alle­ga­ti­ons of the ECJ in Schrems II on. In this sen­se, the Exe­cu­ti­ve Order would be a first step to address the con­cerns for­mu­la­ted by the ECJ. Howe­ver, one may won­der whe­ther an Exe­cu­ti­ve Order can address the defi­ci­en­ci­es in the sta­tu­to­ry basis, espe­ci­al­ly sin­ce Exe­cu­ti­ve Orders are sub­ject to judi­cial review, i.e., they can be over­tur­ned by a court, and they can be with­drawn or modi­fi­ed by the or a Pre­si­dent at any time. Moreo­ver, it is appar­ent­ly dis­pu­ted whe­ther an exe­cu­ti­ve order can be issued against inde­pen­dent admi­ni­stra­ti­ve units such as the CIA, but de fac­to also the NSA (which is legal­ly part of the Depart­ment of Defense).

This does not neces­s­a­ri­ly rule out an appro­pria­ten­ess decis­i­on on the basis of an Exe­cu­ti­ve Order, but it would be just as incon­clu­si­ve as the Exe­cu­ti­ve Order its­elf. For the time being, the­re is in any case no rea­son to fore­go the con­clu­si­on of the SCC or cor­re­spon­ding inter­nal imple­men­ta­ti­on measures.




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