U.S. Surveillance Law for Privacy Lawyers: A Discussion for Those Addressing Data Transfers from the EU to the US

Level: Advanced
Runtime: 61 minutes
Recorded Date: April 06, 2020
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• Introduction
• Discussion of the Adovcate General's Opinion on Schrem II
• U.S. "Mass" Surveillance
        - FISA and Section 702
        - Upstream
• Potential Transfer Analysis

Runtime: 1 hour, 1 minute
Recorded: April 6, 2020


It is no secret that many in the E.U., including data protection regulators, have concerns about the impact of U.S. surveillance on the privacy rights of E.U. data subjects when their data is transferred to the U.S. This point was most recently driven home by the Advocate General's opinion in Schrems II and its concern about how such surveillance could undermine an importer's (and exporter's) ability to comply with standard contractual clauses and, in dicta, the continued validity of Privacy Shield. While we still need to wait for the Court of Justice of the European Union's opinion, it is clear that understanding U.S. surveillance laws, limits and scope is necessary to establish a framework to allow businesses to continue transferring personal information across the Atlantic.

This program was recorded on April 6th, 2020.

Provided By

American Bar Association


Peter Margulies

Professor of Law
Roger William University School of Law

As an expert in National Security Law, Professor Peter Margulies focuses on the delicate balance between liberty, equality, and security in issues involving law and terrorism. Professor Margulies has written almost a dozen articles discussing the War on Terror. He currently works with RWU Law Professor Jared Goldstein, along with litigators from the law firm Edwards Angell Palmer & Dodge, in representing two Afghan detainees. Professor Margulies led a national conference entitled “Legal Dilemmas in A Dangerous World: Law, Terrorism and National Security” held at RWU.

Professor Margulies also has an extensive background in immigration law and has represented Haitian refugees and conducted outreach to community legal service providers.

Peter Marguiles teaches Immigration Law, National Security Law and Professional Responsibility. He has filed amicus briefs in high-visibility cases with the U.S. Supreme Court and has been frequently cited in the New York Times, the National Law Journal and other media outlets.

April F. Doss

Saul Ewing Arnstein & Lehr LLP

April Falcon Doss chairs the Firm’s Cybersecurity and Privacy Practice, and co-chairs the Firm’s Congressional Investigations Practice.

She spent over a decade at the National Security Agency, where she was Associate General Counsel for Intelligence Law. April also served as Senior Minority Counsel for the Russia Investigation in the United States Senate Select Committee on Intelligence. Prior to her federal service, April worked as a public defender, civil litigator, and in-house counsel to a private college.

April advises clients across industry sectors on cybersecurity and privacy matters. Representative clients include: a regional airport, national energy sector consortium, municipal governments, insurance providers, colleges and universities, retail companies, manufacturers, a nonprofit museum foundation, and financial services corporations. In addition to advising clients across industry sectors on privacy and cyber issues, April also represents a number of companies who are in the cybersecurity industry sector, including defense contractors and companies that provide cybersecurity products and services to commercial clients.

April is a Senior Fellow at the University of Maryland’s Center for Health and Homeland Security. She teaches Information Privacy Law and Internet Law at the University of Maryland Carey Law School. She has also testified before Congress on national security legislative reform, and she co-chairs the American Bar Association’s Big Data Committee. She is a member of the Sedona Conference’s Working Group 11 on Cybersecurity and Privacy, and co-author of The Sedona Conference’s Incident Response Guide.

April is a frequent commentator on issues relating to cybersecurity, privacy, and national security. She is the author of the forthcoming book CyberPrivacy: Who Has Your Data and Why You Should Care (2020). She has appeared on CNN, CBC, NPR, and MSNBC. She has been quoted in The New York Times, the Wall Street Journal, the Financial Times, Wired, Axios, Politico, CNN, ABC, and other news outlets and publications. Her articles have appeared in The Atlantic, The Weekly Standard, Bustle, Lawfare, and elsewhere. She’s on Twitter @AprilFDoss.

April graduated magna cum laude from Yale, earned her law degree from the University of California at Berkeley, and holds an MFA from Goucher College.

David Kessler

Norton Rose Fulbright US LLP

David Kessler is the Head of Data and Information Risk, United States and is a thought leader on issues involving discovery, data privacy, records management, and cyber security.

David counsels clients on a range of data privacy matters focusing on compliance and cross border data transfers. David has provided advice regarding the Stored Communication Act (SCA), the Health Insurance Portability and Accountability Act (HIPAA), the Children's Online Privacy Protection Act (COPPA) and Family Educational Rights and Privacy Act (FERPA). He also provides advice to multinational clients regarding compliance with EU data protection and privacy laws including the General Data Protection Regulation (GDPR), where he works closely with his colleagues in the EU.

David acts as global discovery counsel for technology, finance, pharmaceutical and manufacturing companies where he helps them address litigation readiness, cross border discovery complications and acts as special discovery counsel in complex litigations. David focuses not only on tactical e-discovery issues in particular cases, but advises clients regarding strategic e-discovery portfolio management and data governance. For example, David has helped clients with emergency ex parte preservations orders; negotiations with opposing counsel regarding disaster recovery data; establishing that opponents had fabricated e-mails; and developed litigation readiness protocols

David has a particular focus on cross-border discovery. David was recently the counsel of record for an amicus brief before the United States Supreme Court in United States v. Microsoft addressing the importance of comity in cross border discovery. David has helped clients preserve, collect, process and transfer data from countries all over the world including, by way of example, Australia, Brazil, Canada, China, Germany, India, Italy, Nigeria, Japan, South Africa, Spain, Switzerland, and the United Kingdom. David is a contributor to and has been a faculty member for the Sedona Conference's (one of the world's leading e-discovery organizations) Work Group 6 on International Electronic Information Management, Discovery and Disclosure.

David is an adjunct professor at the University of Pennsylvania Law School where he teaches an advanced seminar on "E-Discovery."

David is a Certified Information Privacy Professional (CIPP/E) through the International Association of Privacy Professionals (IAPP).

As part of his information governance practice, David has advised clients on where and how to store and manage data globally as well as how to integrate record retention, data security and e-discovery into the fabric of their IT infrastructure. Beyond helping clients stand up information governance programs with policies and record retention schedules, David counsels clients on mobile device management, ephemeral data, disaster recovery and business continuity systems and the cloud. He also has represented clients in defensible data disposition projects and examining the contours of their own dark data.

As part of the firms cybersecurity team, David has represented clients both preparing for and responding to cyber incidents. He has drafted and revised incident response plans (IRPs), run table top exercises and helped clients select and contract with forensic and public relations vendors. David has advised clients about the scope of data breaches and the company's obligations to notify the appropriate authorities and the people affected by the breach. Finally, David has represented clients in investigations by the FTC into suspected incidents and the quality of the clients' preparations and response.

He received his B.A. with honors from the University of Florida and his J.D., summa cum laude, from the American University Washington College of Law

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