How should the U.S. respond to the Schrems II decision?

A five-point plan

|The Volokh Conspiracy |

The decision of the European Court of Justice (CJEU) in Schrems II is gobsmacking in its mix of judicial imperialism and Eurocentric hypocrisy. The decision invalidates the Privacy Shield agreement between the U.S. and the EU on the ground that U.S. protections for individual rights are not "adequate," by which the court means not "essentially equivalent" to the rights provided to individuals under European law. It manages to do this while acknowledging that the court and the EU have no authority to elaborate or enforce these rights against any of the EU's member states. That, the court says, is "irrelevant." It is making the rules for benighted foreign lands like Canada and the United States, not for Europeans. Freed from the prospect that any of the governments that appoint them will have to live with these rules, the judges of the CJEU declare that large chunks of U.S. intelligence law—including some of America's most productive and essential authorities, such as Section 702 of the Foreign Intelligence Surveillance Act (FISA)—are beyond the pale.

In theory, this means that the United States is a privacy-inadequate nation, and any company sending personal data here may be fined under the General Data Protection Regulation (GDPR) up to four percent of gross global income. (Yes, the court left open the question whether a special set of corporate contract clauses remained a legal basis for transferring data to the U.S., but very few lawyers think those clauses will actually provide any protection when challenged, since no private contract can undo the obligations of Section 702.)

It is astonishing that a European court would assume it has authority to kill or cripple critical American intelligence programs by raising the threat of massive sanctions on American companies. In so doing, the court overrode a formal executive agreement reached by the EU with the U.S.; it also rejected the view of the European Commission that U.S. law was adequate to protect individual rights.

Still, the court clearly does think it can force its views on not just the United States but the rest of the world as well. It has already told the Canadians that they don't measure up. Australia and India have been kept in limbo for a decade due to doubts about whether their democracies dance sufficiently to the justices' tune.

Perhaps, had the court been less stiff-necked, it might have forced a change in the laws of these countries. But now the entire project is bound for disaster. China, which is already a great power when it comes to personal data, has signaled to Europe that it will not tolerate interference with its internal affairs. Yet rather than confront a country that clearly lacks protections for individual rights, European bureaucrats have spent 20 years chivvying the United States over data transfers, signing and breaking half a dozen agreements, always asking for more and usually getting additional concessions—including appointment of a special U.S. "ombudsperson" to hear European complaints; enforcement of European law by U.S. agencies like the Federal Trade Commission and Commerce Department; and a special Judicial Redress Act, passed for Europe in 2015, that grants Europeans the right to file FOIA petitions. None of that was good enough for the CJEU. This history shows that, even if the U.S. again tried to modify its law to meet the court's rigid demands in Schrems II, more litigation and more demands—not peace—would be the result.

The time for American concessions is over. Throughout the emergence of this issue, the U.S. has insisted—and the EU has agreed—that data flows across the Atlantic should not be interrupted. Indeed, the World Trade Organization (WTO) agreement signed by Europe makes clear that data flows may not be regulated in the name of privacy if the regulation is a means of "arbitrary or unjustifiable discrimination between countries where like conditions prevail." Nothing could be more discriminatory or arbitrary than 20 years of pursuing the United States for the privacy equivalent of parking tickets while ignoring similar infractions by the member states and an endless series of privacy felonies by the People's Republic of China. It's time for the U.S. to get serious about ending this campaign of harassment.

What can the United States do? Plenty. Here are a few options that belong on the table in the interagency process.

1. Rescind the concessions the U.S. made to get the now-broken deal. This is a no-brainer. Europe has broken the deal it made, and it cannot keep the parts of the deal it likes. The U.S. attorney general should withdraw the special status of European nationals under the Freedom of Information Act and the Judicial Redress Act. The Office of the Director of National Intelligence should abolish the office of the ombudsperson created to give Europeans comfort that their complaints about intelligence collection would be heard. President Trump should rescind PPD-28, the Obama-era set of politically correct limitations on intelligence community activities, which has been kept alive as part of the Privacy Shield negotiations.

2. Prepare to retaliate in a way that shows the U.S. is serious. Americans have never paid much attention to periodic eruptions of the data transfer issue. We are always a little inclined to think that maybe Europeans have something to teach us about privacy and human rights, so righteous American anger about intrusion on our sovereignty has been slow to ignite. But now is the time to show Europe that the U.S. is serious about keeping in place effective counterterrorism measures—and keeping the right to write U.S. laws without getting permission from European governments.

Because this decision violates U.S. rights under the WTO, the executive branch has authority under Section 301 of the Trade Act of 1974 to impose tariffs and other import restrictions on the countries of the European Union. And it should. If the U.S. wants to get Europe's attention, it needs to get Germany's attention, which probably means heavy tariffs on German cars and perhaps car parts. Airplanes and airplane parts are also a touchpoint. As usual, the list of retaliation candidates will need to include something of great value to each member state—Irish whiskey, say, or French wines.

The retaliation process will take a few months. The goal is not to impose the tariffs but to put an end to the crisis—and to Europe's peculiar arrogance about imposing its personal data law on the rest of the world.

3. Make common cause with the U.K., Canada, Australia and perhaps India. The U.S. doesn't have to stand alone. The EU has been threatening the U.K. with an "inadequacy" determination as punishment for Brexit. Its court has already struck at Canadian law. And Australia and India surely know they are next. The U.S. should include these nations in any negotiation, but only if they join America in preparing sanctions against Europe.

4. Find a stopgap solution in one of the member states. The CJEU's admission that it doesn't have anything to say about how member states protect personal data isn't just a confession of hypocrisy. It could be an opportunity to do an end run on the whole mess created by the court. If any one of the member states—Poland, say, or Ireland or Hungary—were willing to sign a national security agreement with the United States, it would be acting within the national security authority conferred on it by Article 4(2) of the Treaty of the European Union.

Suppose, in the pursuit of its national security interests, Poland agreed to allow personal data to flow to the United States without restriction, in exchange for which the United States agreed to share with Poland any counterterrorism data it was able to obtain by virtue of its worldwide intelligence collection. That would only apply to data transferred from Poland, of course, but companies could set up subsidiaries in Warsaw, transfer their data holdings there from elsewhere in Europe—after all, the EU is a single market—and then let them move to the United States.

Or suppose that Poland's government and data protection authority agreed that data exports to the United States could be challenged on the ground that protections for Europeans from U.S. intelligence were inadequate—but only by a plaintiff who could demonstrate concrete economic injury. Since the European objection to U.S. law has been almost entirely theoretical, this has the double advantage of providing redress for actual human rights violations while exposing the fact that, by and large, no one in Europe can point to any.

Whether these one-country solutions would withstand the inevitable legal wrangling, I don't know, but the court left no time for companies to adjust. Getting a Polish exit visa for data from that country would give them breathing room even if the shelter doesn't ultimately survive its journey through the courts.

5. Negotiate an agreement that ends the threat to American companies. If the U.S. can get European governments to take seriously American objections to the notion that Europe can write U.S. law, there is a simple solution to this problem. The CJEU's opinion, though written as though grounded in the rights of man, is in fact based on a European regulation and a European treaty. As a matter of international law, both of those can be overridden by a newer treaty. Indeed, the U.S. entered into a binding executive agreement—the international equivalent of a treaty—when it bargained for the adequacy determination that the court overturned.

How could the court overturn a binding agreement, then? The Americans who negotiated the deal under the Obama administration gave a lot of binding promises about how they would handle European data, but they didn't get a binding promise in return that U.S. law would be deemed adequate and that data flows of compliant companies would not be restricted. Maybe they got snookered. Maybe they couldn't muster the will to draw a line in the sand. Whatever the reason, the agreement is utterly one-sided—all American concessions, plus a little European mood music.

So the U.S. should ask for the concessions it should have gotten last time: a binding assurance that U.S. protections for individual rights are not in need of European editing and that data flows will never be threatened again over this issue.

As democracies with long histories of protecting civil liberties—histories that stand up well next to those of most EU members—the United Kingdom, Australia and Canada should get the same assurances. The CJEU's only source of power to undo the deal is the GDPR and the Treaty of the European Union (which is also the source of the Charter of Fundamental Rights of the European Union). All of those instruments must yield to a binding international agreement with the United States and other democratic nations.

A version of this post also appears on Lawfare.

NEXT: #MeToo, #TheyLied, and Pseudonymous Litigation

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  1. In what alternate universe does anyone think that the current administration is in any way capable of executing any of the recommendations here, particularly the one where the U. S. shold make common cause with it allies?

  2. I was wondering how this came about. Traditionally, and logically, the highest law would be a constitution, then treaties, then regular laws passed in the normal way. If anything conflicts with something above it, it loses.

    If I understand, this promise part never really made it to treaty level, though our promises did.

  3. How about 6. Enact some adequate privacy legislation? Because an “ombudsperson” and the ability to make FOIA requests really isn’t going to cut it.

    Meanwhile, I’m wondering about this one:

    acknowledging that the court and the EU have no authority to elaborate or enforce these rights against any of the EU’s member states

    What are you talking about here? As the name says, the GDPR is a Regulation, and as such part of the law of the Member States. In the other thread, I posted a link to the Panopticon Blog, which is full of analysis of cases where individuals are taking their Member State to court for violating their data protection rights. And if all else fails, the European Commission can take a Member State to the ECJ under art. 258 TFEU, the general procedure for Treaty infringement. (Which is something the Commission does all the time, across all areas of EU law.)

    So in what sense do the EU and its institutions not have the authority to enforce data privacy rights against the EU member states?

    1. He’s being pretty relentless about inaccurately describing the ruling in that regard. The EU states are absolutely subject to enforcement, they’re just treated, so far as I can tell, as “pre-cleared” on the relevant protections. So that you’d have to demonstrate violations to get any enforcement against them.

      Really, his complaint here boils down to the court enforcing the law on entities IN EUROPE, to the disadvantage of our intelligence services. I’m personally fine with that, we really need to rein in our intelligence services before we end up a police state with the elected branches cowering before blackmail threats.

      Assuming that we’re not already there, and that’s why they don’t get reined in…

      1. “Really, his complaint here boils down to the court enforcing the law on entities IN EUROPE, to the disadvantage of our intelligence services. I’m personally fine with that, we really need to rein in our intelligence services before we end up a police state with the elected branches cowering before blackmail threats.”

        And even if one would prefer Europe didn’t do this, “other countries doing things that thwart American spying” is not some gigantic outrage. EVERY country that creates a spy service knows that other countries will do things to make the spying less effective. That’s really part of how intelligence collection works.

      2. Why should we do anything to help the tech companies while they are still censoring American’s political views on the internet, and at the same time helping China censor internal Chinese and other international critics views?

    2. This.

      We could also just do nothing, and accept that the EU gets to do make different policy choices than we do.

  4. As a separate matter, it’s quite something to complain about “solipsism” and “judicial imperialism” when the US authorities are holding the entire world financial system hostage with respect to Iran.

  5. Is your argument really that the EU court is setting law for US government agencies? That’s a strange take. All they did was say that the data sharing agreement violated EU law. Are you saying the US government agencies don’t have to obey EU law when operating in the EU, just because they are US agencies?

    I must be missing something.

    1. It’s not even that, all the ECJ said is that the EU and its Member States are not allowed to share data with the US in the way that they have been doing. It’s not saying anything about the law that applies to the US government at all. (Which might have been problematic from a sovereign immunity point of view.)

      1. Yes, what I said. TFA seems to take the view that this is legislating control over US agencies and this is immoral because US agencies are based in the US. It makes no sense.

        1. Legislating about US sovereign acts in Europe might still violate sovereign immunity. Eg. United States v. Nolan (2015), where the UK Supreme Court held that UK labour law applied to a civilian employee on a US military base in the UK.

          https://www.supremecourt.uk/cases/docs/uksc-2014-0073-judgment.pdf

    2. You mean the way that folks associated with the UN don’t have to pay parking tickets in NYC?

      1. If that’s an analogy, it’s lost on me.

        1. I think Dr. Ed thinks he made an analogy about sovereign immunity. Of course, the UN doesn’t have sovereign immunity, its immunity derives from a treaty that the US is party to, but “folks associated with the UN” might include national diplomats (if you give Ed the benefit of the doubt) who do have diplomatic immunity. (As did Anne Sacoolas, for the record.)

  6. The EU court is saying that the US privacy laws are not sufficient under EU laws for the EU to share data with the US. This is probably right, or privacy laws suck. This is not the EU writing US laws, they are just saying ours are not up to their standards. Good on them to have higher standards.

    1. And to be fair they are only saying that with respect to data about Europeans in Europe, who have significantly fewer rights under US law than Americans do. No Fourth Amendment protections, for example.

      1. If they don’t want to help us any more, fine. Let’s bring all out soldiers home. Let them defend themselves. They will be fine. We don’t need to investigate terrorism anymore either (not that we have honored ourselves).

        1. ^^^This

          Completely agree. You really cannot look at this in isolation. You need to see the larger context, IMO.
          – EU trade policies and barriers target the US
          – EU defense spending commitments are routinely dismissed
          – EU diplomacy at the UN is distinctly anti-American
          – EU digital taxation policies are an IP and money grab
          – EU energy policy is skewed toward the Russians

          Perhaps a strategic decoupling is in order. Or maybe ‘recoupling’ is a better term. For 70 years, the United States has stood at the side of Europe and protected them from communist domination. We spent our blood and treasure twice in the last century in world wars of their making. And we helped rebuild their infrastructure in the aftermath of WW2.

          To this American, they are Euro-ingrates. Let them go their own way.

  7. 7: Bomb them.

    Not literally, but make it clear that we consider this an act of war and that we will end diplomatic and trade relations with any state that supports it.

    The EU is about ready to implode on its own, and we simply give the member states the option of jumping off the sinking ship, or riding it down to demise.

    1. Just pull all troops and all support. End NATO as it does US no good at all anyway, Let Europe fall apart then salt the ground after it goes tits up.

      1. Yes, looking at the evening news, it’s definitely Europe where society is in tatters…

      2. I’m ok with the US withdrawing from NATO, bringing 300K troops home, and we might as well slash US military expenditures to Slovenian levels (1% of GDP, as opposed to 3.5%), but how would doing any of that solve the issues raised in the OP?

        1. 300K is an overstatement. Unintentional.

        2. We’ve spent a century and untold treasure babysitting Europe for the past 103 years — time to tell them to go to hell and bring our 64K troops home to spend US taxpayer dollars *here*.

          And then we cut all the cables….

          1. What does “cut all the cables” mean and why would we want to do that?

          2. The problem is that there are some pro American countries like the Baltic States that are at risk from Russia. We betrayed them in 1945, I’d like to not betray them again.

            Western Europe, they can suck it.

            1. Since we simply can’t be trusted past the next election, if we really want to help them we should just “lend-lease” them a few ICBMs.

              Big mistake Ukraine made there, handing over those nuclear weapons.

              1. Nope, they would point them West, not East.

                1. Probably more North than west or east. Because, when Russia invaded Ukraine, they might have been handy

                  1. Why? Ukraine wouldn’t have started a nuclear war with Russia over it. I doubt it would have stopped Russia from invading, and that’s implicit in the argument in support of NATO as well.

                    1. “Why? Ukraine wouldn’t have started a nuclear war with Russia over it. I doubt it would have stopped Russia from invading, ”

                      Are you sure? Crimea had been a legal part of Ukraine since the 1950’s. This is like saying the US wouldn’t start a nuclear war with Russia over Russia invading Alaska or Hawaii. And the “threat” of nuclear weapons may well have stopped Russia from invading. Even if there was only a 10% chance that Moscow went up in nuclear fire, it would be a risk that Putin likely wouldn’t take.

                    2. “Are you sure?”

                      No, that’s why I said “I doubt” as opposed to “I’m certain…”

                      “This is like saying the US wouldn’t start a nuclear war with Russia over Russia invading Alaska or Hawaii.”

                      No, it isn’t. To understand why, consider whether it’s believable that Hawaii or Alaska would have regional referendums to, uh, “reunify” with Russia.

                      But, in any event, I’m pretty confident the United States would not start a nuclear war with Russia over Russia “invading” Alaska or Hawaii the same way they “invaded” Crimea. Neither is going to wake up tomorrow for such a referendum. Attempts by Russia to Crimea their way into Alaska or Hawaii will take decades, not days, and would look a lot more like the slow, boring slog we’re in right now, where they poke us at the fringes with election interference rather than outright nuclear war or even armed conflict. It will look more like Afghanistan, in reverse.

                      At most Ukrainian nukes might have deterred Russian physical invasion of space, but would certainly have not deterred them from shadow wars anymore than our nukes failed to do so for decades of cold war.

                    3. “No, it isn’t. To understand why, consider whether it’s believable that Hawaii or Alaska would have regional referendums to, uh, “reunify” with Russia.”

                      Wow. You actually believe that regional “referendum” was valid, in any way? Really? Really? I’m astounded if you actually think that.

                    4. “Wow. You actually believe that regional “referendum” was valid, in any way?”

                      I did not weigh in on the validity of the referendum at all. Whether it was legally valid or not is neither here nor there to what we’re discussing. However, polling by numerous international outfits prior to and after the referendum did show more support for Crimean allegiance to Russia rather than staying with Ukraine, although the most popular position (by some polls) was staying in Ukraine with more autonomy than was afforded. Even granting Russian interference, the idea that Crimeans were unified in support for staying in Ukraine is ludicrous by all accounts. But, again, the point here is just to compare how silly it is to think of Hawaii or Alaska having the same type of referendum as a country with historical ties and some popular support for reunification with Russia.

                    5. You referenced the referendum as support for your point, mplied that in some ways, you somehow consider it potentially valid. And then you try back that up with polls and such.

                      Let me say this bluntly. That Crimean “referendum” Russia ran was a 100% fraud. It was a lie. It was a fake election. The fact you actually don’t get this speaks very poorly about your judgement.

                    6. I must not have communicated my point effectively. Russia invaded after a referendum. You say it’s illegitimate. Great. Wonderful. The point is that since neither Hawaii nor Alaska are 65% ethnically Russian—as is Crimea—there’s no reason to postulate a Russian “invasion” of either in the same kind as Crimea.

                      I don’t carry water for the god damn Russians. (Aside: President Trump has suggested the referendum is legitimate because Crimeans speak Russian, which happens to be true). The international illegitimacy of the referendum is about 1. sovereignty of Ukraine and 2. Russian interference, in that order. Why would I waste time arguing with a confederate states rights apologist over Crimean secession legitimacy?

                      Set that aside. You’re perpetually out of your element. It can be true that Russians manipulated the Crimean referendum AND a majority of the people living in Crimea have wanted to reunify with Russia years before the referendum. Doesn’t make the referendum legitimate! But the reason Russia chose Crimea as opposed to, say, Chernihiv (which, unlike Crimea, shares a fucking land border with Russia) May have something to do with the number of ethnic Ukrainians in Chernihiv (90%+?) versus Crimea (15%?). Do you think it’s some massive coincidence that Russia targeted the only oblast that has an ethnic Ukrainian minority?

                      Every discussion with you is like arguing with a child who corrects for a complete lack of nuance and context by perpetually changing the subject. I didn’t endeavor to argue with you over Crimeans politics until you thought it was a good idea to talk about fucking Hawaii. But now we are here. Do you have any understanding as to WHY Crimea became part of Ukraine in 1954? It’s a wildly complicated history. Given Soviet secrecy and the passage of time, we probably won’t ever know the whole truth. But it certainly didn’t have anything to do with the will of the Crimean Tatars (who the Soviets treated as Nazi sympathizers), or the majority ethnic Russians/minority ethnic Ukrainians living there.

                      Re: my judgment, I often exercise bad judgment. Daily. It forces me to rethink how confident I am about things I am around everyday, like the shit that happens on my street. And then I wonder if I’m wrong about what I see everyday, how much I can possibly know about stuff that happens 5,000 miles away, much less with your certainty (“100% fraud”)? Have you considered that maybe you’re just wrong sometimes??? Join me. Being wrong feels great.

                    7. NToJ,

                      Let me say this plainly. You are woefully misinformed about the facts, and you ARE carrying water for Russia by your continued support of this issue.

                      The fact is, Russia invaded Crimea BEFORE the “referendum.” Not after. They then “held” the “referendum” while holding their Russian assault rifles over the ballot box. Here is a timeline.

                      https://en.wikipedia.org/wiki/Timeline_of_the_annexation_of_Crimea_by_the_Russian_Federation

                      This “referendum” has been condemned by the UN and every member of the UN Security Council…except Russia. (I believe China abstained).

                    8. As always, you’ve attempted to oversimplify a complicated issue. Russian military involvement certainly occurred prior to the referendum, but full-out military operations did not happen until after the referendum and an alliance/treaty between Crimea and Russia . There can hardly be any doubt that Russian shenanigans took place both overtly and covertly to facilitate the referendum. But there’s more to the story than polemics against Russian interference. Even before any (overt) Russian involvement, public opinion polls showed growing support for reunification, largely due to the locals’ hostile reaction to Euromaiden protests in Ukraine. And post-referendum polls (by the Broadcasting Board of Governors, Gallup, Pew, GfK) have reflected overwhelming support for the referendum.

                    9. NToJ,

                      Yes, full Russian military operations occurred in Ukraine before the referendum. The Russians controlled the border, the controlled the airports, they controlled the hospitals, they controlled parliament itself. The Crimean government “vote” was under the literal guns of Russian troops. They “voted” in the guy who just one 4% of the vote as the new head of the parliament. Here’s just some of the timeline below. If you can’t see that this was an outright takeover of the Crimea by the Russian Government and a completely fraudulent “referendum,” you’re carrying water for Putin.

                      Febrary 25th: Russian Armed Personnel Carriers deployed within Sevestapol
                      Febrary 26th: Russian troops take control of the main route of access to Sevestopol
                      Febrary 27th: Russian professional gunmen seized Crimea’s parliament building
                      Febrary 27th: UNDERNEATH THE RUSSIAN GUNS IN PARLIAMENT, Crimea’s MP’s “Vote” and replace the Crimean prime minister wth Sergey Aksyonov, head of the Russian Unity party. He had obtained just 4% of the vote in the last election.
                      Febrary 28th: “Unidentified” armed men seize Siferopol and Sevestapol International Airport. Russian Troops, as disclosed on March 11th
                      Febrary 28th: The Russian Navy blocks Balakava Harbor
                      Febrary 28th: Russian Airborne Troops land in Hvardiyske
                      Febrary 28th: Russia demands Ukraine hand over Crimea without struggle, or else it will occupy all of Ukraine
                      March 1st: Ukranian journalists prohibited from entering Crimea by the “new” Crimean government.
                      March 2nd: Ukrainian Marines in Feodosiya surrounded by armed men (Likely Russian troops), surrender demanded
                      March 2nd: Ukranian Navy building in Sevestapol under seige by Russian Army
                      March 3rd: Ukranian troops in Crimea told to surrender, or face armed confrontation from the Russian Army and Navy
                      March 5th: Russians attack the border checkpoint in Kerch
                      March 6th: “Armed Men” (Russians) Seize the Simferopol Radio and TV station, replace the broadcasts with Moscow-based news.
                      March 8th: Ukranian Border Guard Services in Sholkino taken over by Russians
                      March 10th: Rusian forces seize the main military hospital in Simferopol
                      MArch 12th. The Multinational OSCE observation mission tries to enter Ukraine. Refused at gunpoint. They observed Russian Military personelle at the border.
                      March 16th: The “Referendum”

    2. Not sharing data is not an act of war under any circumstances. Why would we threaten one of our closest allies because they value the privacy of their citizens. Maybe we should take this as wake up call that our privacy laws suck.

      1. Because for about 75 years the US has guaranteed European independence and while that was a good thing when Europe was recovering for WWII and threatened by the Soviet Union it is well past time for the Europeans to stand up for themselves and stop expecting the US to do stuff for them.

        1. What does that have to do with anything? I mean, don’t get me wrong, you’d have to be a pretty deluded sort of European to expect anything from the US after 3.5 years of Trump, but why is that relevant for either a) whether the US should have proper privacy laws, or b) whether the US should bomb Europe to smithereens?

          1. I’m reminded of what Eisenhower said to DeGaul when asked how quickly the US could get out of France: “Well, I imagine it will take some time to dig up all the bodies….”

            At what point do we simply say “You ungrateful assholes — go **** yourselves…”

            Giving aid & comfort to an enemy — and terrorists are our enemy — is an act of war.

            1. That depends. Without Europe there wouldn’t be a United States as it exists today. For better or worse, neither the people nor the institutions would be there. When/how are you going to pay us back for that? Or, more specifically, for the colonies that we founded on America’s shores that you stole from us with force of arms?

              #TwoCanPlayThatGame

              1. Brits expelled you from America. Talk to them.

                Don’t hate us because we took all your good people and left the current dregs.

                1. We sent all the religious nuts to North America and all the criminals to Australia. That suits us fine, except that we forgot about the religious nuts we sent to Northern Ireland first.

                  Also, last I checked the UK is still in Europe, so I’m not sure why you’re distinguishing them from “you”. (Which presumably meant the Dutch or the EU.) And, for the record, we (the Dutch) sold the British our North American colony in return for Suriname, which was an excellent bargain at the time, given that Suriname is a much better place for sugar plantations.

                  1. “Suriname is a much better place forsugar plantations”

                    Good deal.

                    “Planters’ treatment of the slaves was notoriously bad[2]—historian C.R. Boxer wrote that “man’s inhumanity to man just about reached its limits in Surinam”[3]—and many slaves escaped the plantations. ”

                    “Slavery was eventually abolished on 1 July 1863, although slaves were only released after a ten-year transitory period in 1873.” wiki

                    Congrats.

                  2. It seems the Brits didn’t see a need to choose, and ended up with both Manhattan and Demerara.

        2. The US presence in Europe serves the interests of the US as much (possibly) as it does the Europeans. We get military bases that support our operations world wide, we get a platform to keep a close eye on Russia, we get influence in Europe, and in case of war with Russia, the battle field is in Europe, not the US. And you want to toss all of that because they are correctly saying our privacy laws suck?

          1. 1) Given that American military “operations world wide” have been an abject disaster with no ROI for decades, what possible benefit is it to Americans having European bases to juice catastrophic failures?

            2) How do military bases in Europe help us keep a “close eye on Russia”? Is there an American standing at the top of Rose Barracks with binoculars looking out over… Poland? This is the 21st century.

            3) Just so I understand the outrageous claim, we need to have tens of thousands of Americans stationed in Europe to guarantee that when Russia decides on world war, it will invade Europe (where we have merely tens of thousands of soldiers) as opposed to the US, where we have 1.3M? So bringing those soldiers home would encourage Russia to invade the US? Could you explain your theory?

            1. 1. I agree.

              2. Radar for one. “Keeping an eye on Russia” is real, but the least important of my points.

              3. Our presence deters Russia, which lowers the probability of war, which if happens would drag us in anyhow, and would likely have some combat on US soil. Thus it is better to keep a few troop there.

              1. These aren’t rhetorical questions.

                2. What is it you think radar in Germany is going to catch that is of interest to the US? Is the theory that Russia is going to fly nukes over Stuttgart on their way to NYC? But that the mere presence of American radar stations in Europe will prevent that?

                3. How does our infinitesimal presence deter Russia, and from what exactly? Is Russia threatening a land war with Europe? And if a Russian land war will inevitably lead to our involvement “anyhow”, in what sense is the current deployment necessary at all? And what did you have in mind re: “combat on US soil”? Like naval bases? Or are you full out predicting Red Dawn? More generally, in your view why would the Russians invade? What’s in it for them?

                1. 2. Yes (partially). Early warning Radar is a real thing.

                  3. Russia is ALREADY IN a land war with Europe. See Ukraine. 2014.

                  1. Yes! That is my point exactly! Russia invaded Ukraine, which is not part of NATO. They have not touched NATO countries.

                    1. “They have not touched NATO countries”

                      Perhaps BECAUSE they are NATO countries? And the risk that would entail?

                  2. 2. This isn’t really responsive. I assume radar is a thing. I can understand why a military alliance that protects Germany from nuclear attack by Russia, would want radar systems in Germany. What I’m trying to figure out is why the United States needs radar to protect Germany from nuclear attack by Russia. Is it your theory that the Russians will attack the United States by sending nukes over Europe?

                    3. Russia is in a typical, cold war era proxy war with one of its former satellites, Ukraine. Is the idea that once the Ukraine domino falls, Russia will charge on Spain? And why is any of that the US’s problem? Further, since NATO didn’t stop this “land war with Europe” isn’t that more evidence that NATO is a giant waste of time? Why should the United States spend hundreds of billions of dollars per year to not stop the Russians?

                    1. 2. “Is it your theory that the Russians will attack the United States by sending nukes over Europe”

                      Yes.

                      Realistically, it is more complicated. “Europe” is quite a large area, which includes (among other things) Norway and most of eastern Russia. Moreover, radar can see a good distance “over the border.” So a radar station in Poland or Latvia can see a good chuck of Russia. So, when that ICBM launches from Novgorad, the early warning station in Latvia can “see” it launch

                      3. “Russia is in a typical, cold war era proxy war with one of its former satellites, Ukraine. Is the idea that once the Ukraine domino falls, Russia will charge on Spain?”

                      No, the idea is that Russia will charge on its former satellite Latvia, which is a NATO member. And when NATO pulls out, Russia “calls the bluff”, and invades. And when nothing is done, Russia keeps going. Lithuania, Estonia, Poland….

                    2. My god, you mean those countries would fall… like dominoes????

                    3. My God, you mean history might REPEAT itself. Just like it did before? Where one country falls, and then the next?

                      Who would’ve thought? Amazing.

                    4. Wow. It would be an updated version of the Tom Clancy novel RED STORM RISING. That would be great fun. Except of course in the end, Europe would be in ruins, Russia and the US would be exhausted, and China would probably use the distraction to invade Taiwan (and bludgeon Japan into submission).

                    5. Guys, As NToJ knows and none of you do, the history of the Cold War is rather a rebuke of the domino theory that got us into Vietnam, among other things.

            2. 1a. “American military “operations world wide” have been an abject disaster”

              That seems rather harsh. Personally, I think things like, oh, the French defense in 1940 as an abject failure. Perhaps you could extend it to the American involvement in Vietnam in the 1970s. But as for US military operations…

              Gulf War 1 was considered one of the greatest tactical victories since WWII. Gulf war 2 was could certainly be characterized as mixed, but “abject failure” would be inaccurate, since a Sadaam’s regime was quickly removed, and a friendly-ish regime was installed. ISIS was eliminated in other operations. So, it seems inaccurate to classify all US military operations as “abject failures”, given that they’ve largely succeeded in their goals.

              1b: ROI.

              “ROI” in war largely doesn’t exist in an immediate conventional sense. It’s more of a “preventative” measure, with long term ROI over the alternate approach (which is doing nothing).

              3. Russian invasions of Europe.
              -See Ukraine and Crimea, 2014.

              1. Gulf War 2 was a horrible failure. It de-stabilized the entire region for almost going on two decades. ISIS existed because of that.

                Russia invaded Ukraine, which is not part of NATO. They have not touched NATO countries.

                1. “de-stabilized the entire region”

                  That was the goal.

                  1. That’s not how it was sold to the American People.

                    1. I know…amazing that politicians don’t tell the whole truth. 🙂

                      wrt the Iraq invasion and removal of Saddam Hussein…Personally, I would have chosen to keep Saddam penned in his little sandbox, and periodically bomb the shit out of his military infrastructure. Leaving the Big Bad Arab Muckedy-Muck in place does wonders for regional stability. But it is a bitch on human rights.

                      That has been the pattern in the ME for a long time now. At least for the last 1,000 years or so.

                    2. I was quite young and apolitical at the time, so I don’t know what I would have thought. But as I recall the thesis was that freedom and democracy were so sexy once we made a power vacuum Iraq would become a Muslim Israeli-like ally.

                      Turns out that was pretty wrong – we can’t get there from here.

                      There wasn’t even a need to occasionally bomb Saddam – his military infrastructure was quite weak and included no WMDs.

                2. “Gulf War 2 was a horrible failure.”

                  You’ve got an odd definition of “horrible failure.”

                  1. The short term was a US victory. We should have put a new strong man in charge and gotten out. But no. The CIA and the State Department decided to play nation building. The result was a massive failure.

              2. 1a. I note that the last success you mention was 80 years ago, predated NATO, and was not some pointless frolic by the US military (as is the tradition, now). As a reminder, we were attacked.

                I grant that the Gulf War was a tactical success and at least stopped the Iraqi invasion in Kuwait. Besides the protection of Kuwaiti sovereignty, which is not of any moment to me, really, what do you think we accomplished for US interests?

                Gulf War 2 was an abject failure. Deposing Saddam may not even have been on the whole a positive development for the US. I don’t know why we have any reason to think the “friendly-ish regime” is going to promote the long-term interests of the US anymore than Saddam did. Claiming ISIS’s elimination is risible, since it was the Iraq War that graduated ISIS from a fringe, no-name terrorist group to a power broker in the region in the first place. If you think the Iraq War accomplished “goals” that were worth accomplishing, we can agree to disagree.

                1b. Preventative measures have ROIs. The problem is that the US’s military operations world wide never accomplish the stated long-term goals. And in the case of Vietnam, Gulf War, and Iraq War, the preventative goals have since been proven to be based on hysterics.

                3. So we need to have thousands of American troops in Europe to prevent Russian invasion in Ukraine and Crimea in 2014, which occurred when the US had thousands of troops in Europe…?

                1. 1a. Technically speaking, I consider the French defense of France in 1940 an abject failure, not a success. Just as an example, mind you. But an abject failure.

                  1a1.

                  Re: Gulf war one: It prevented Iraqi domination of the Middle East, and an invasion of Saudi Arabia, which would have devastated the global oil market, and caused a global recession, if not depression. Not to mention freeing a sovereign country, reinforcing the use of a and global consensus (in the UN)

                  Re Gulf War 2: It…technically speaking…succeeded in its objectives. Saddaam was removed. A democratic regime was installed. ISIS was a setback, but was eliminated.

                  1b. Re ROI:

                  Leaving Vietnam out (which was a general failure), Gulf war 1 and 2 met their goals. Kuwait was freed. Saddam was removed, and a democratic regime was installed. These will be long term positives.

                  3. So, those thousands of US troops PREVENT Russian invasions of NATO members. Ukraine, notably, wasn’t a NATO member. And unsurprisingly, was invaded by Russia. If those US troops weren’t there, protecting NATO members like Latvia and Estonia, Russia would likely invade or dominate them, like its done with its other ex-satellites.

                  1. 1a1: Things are a bit more complicated. Maybe the Saudis would have repelled invasion without us. Maybe not. The Saudis’ decision to have us resulted in the rise of Al Qaeda. That wasn’t costless. And a lot has happened since then that should make all Americans question the usefulness of the House of Saud, full stop.

                    Your view of Gulf War 2 is myopic. The invasion might have solidified our stated (initial) objective. I hope I don’t have to tell you that the stated objective was never to stick around in varying capacities for 17 years. Every military frolic looks great if you just ignore blowback. I assume you know this, hence “technical speaking”.

                    1b. Why are you so sure removal of Saddam was a “long term positive”? It isn’t a sure sell justifying that (in hindsight) for free. But for $2.4T? Set aside the American dead, the Iraqis dead, the destabilization, etc. The ROI is horrid.

                    3. “Ukraine, notably, wasn’t a NATO member.”

                    That is interesting. I’m surprised Russia didn’t invade Angola, which also isn’t a NATO member. Perhaps there is more to it, especially since your cause/effect analysis is based on a military alliance created to resist a bloc that no longer exists. How long was Ukraine not a NATO member, but also not invaded by Russia?

                    1. NtoJ…would you concede that it is too soon to tell if PG1 & PG2 were actually a success or failure (by whatever metric)? What I mean is, we often do not know until decades afterward whether something was a success or failure. The reason, to me, is that history needs to unfold and develop.

                      My personal opinion is the soonest we can even begin to make an assessment is 25 years after the event. We can only just now start assessing the impact of PG1.

                      Would you (and Armchair, by extension), agree with that proposition?

                    2. PG1 maybe. The problem with your analytical approach is that the farther out you go, the harder it is to evaluate the counterfactual inaction, too. If, in 25 more years, Iraq becomes a peaceful Utopia, who is to say that if we hadn’t done anything in 2004, it wouldn’t have gotten there, anyway? And without spending trillions and killing hundreds of thousands of people.

                      (Also those wars are at war with each other. PG1 left Saddam in place. If PG2 survives history because of Saddam’s ousting, that would make PG1 a moral failure.)

                    3. To follow-up on that, 25 years strikes me as pretty arbitrary. Why not make it 30? Or 100? The Vietnam War was a success, you see, because it led to reunification and Vietnam is now a trading partner.

                      I think it’s certainly possible for the long-term effects of a war to turn a loser into a winner over time. But that doesn’t mean it’s “too soon” to determine if a military engagement was a failure as of today, and PG2 was a failure, as of today. There’s not some magic about history 25-30 years from today. History occurs at 5-10 years out as much as 10-15 years out. And 15-20.

                      Admittedly sometimes effects take a long time to develop, but this can cut both ways. Was PG1 a failure because it caused the Saudis to kick out Osama, which caused Osama to radicalize further, which led to 9/11 based (on his words) in large part on American boots on holy Saudi soil? Are we willing to add the 9/11 casualties to PG1’s ticker? Recall they were less than 25 years apart.

                      I think that’s a bridge too far. At some point we’re arguing over whether we can declare a butterfly wing’s flap as a failure or success, because we don’t know which hurricane it might cause. Letting the dust settle a bit before “mission accomplished” is sensible. Withholding all judgment (and therefore refusing to learn anything) for nearly three decades doesn’t strike me as sensible.

          2. Russia is a declining, albeit nuclear, power. Putin is many bad things, but he is not Kim Jong Un, so he’s not going to start a general nuclear exchange.

            We need to do our best to check Russian adventurism where it pops up, usually in some corner somewhere, but they’ve devolved into an annoying sideshow, and are no longer our primary geopolitical adversary. That is, and will remain for the foreseeable future, China.

            We can reasonably hope that China will run itself into the dirt more or less as the Soviet Union did, but not quickly. In some sense, given the increasing power of the lunatic left in this country, we’re in a bit of a race with China to see which drives itself into the dirt first. Bookies’ odds will shift with the outcome in November.

          3. No need for all that expense, haven’t you heard you can keep an eye on Russia from Wasilla, AK?

      2. They aren’t close allies. Europe is a tick on the world.

        1. “They aren’t close allies.”

          UK, not even part of EU anymore, Poland, Baltic States, Hungary, Albania.

          Germany actively opposes US interests. Its a Chinese ally now.

          1. Wow, when you put it like that, America’s allies sure are the pick of the litter. What does it say about America when the countries that are still willing to be its allies are the ones that border Russia and the ones that have gone halfway towards abolishing democracy?

            1. “ones that border Russia ”

              The ones at risk.

              “pick of the litter”

              What an arrogant SOB you are.

              1. Yes, silly me for having a problem with countries becoming less democratic. In Europe we’ve just spent the last four days trying to do something about that. What is the US doing about its failing democracy?

                1. This argument is about as interesting as watching two schoolyard bullies argue over whose dad would win in a fight. I don’t understand the high brow claim from the EU or the Netherlands. The EU has a Stabilisation and Association Agreement with Albania. The other countries are in the EU.

                  1. …and as we’ve been realising in recent years, being in the EU isn’t enough to guarantee that a country won’t slide into authoritarianism.

    3. Thoughtful, let’s just utterly cripple thousands of American companies and ruin the lives of millions of Americans by arresting >$1T in trade. To say nothing of the harm that would cause European companies and consumers.

    4. So, you think it is an act of war that a European court decided that data about European citizens should be handled by US companies doing business in Europe according to European law? What’s next? Maybe McDonalds Paris will have to obey French health regulations, or Ford will have to sell cars in Germany that comply with European emissions requirements? It’s obviously inconvenient to tech companies that they may need to keep some data in Europe or be even more privacy-conscious in how they handle data, but it’s inconvenient to have to comply with all sorts of local laws and we generally don’t go to war over them.

      Or, more likely, you just have no idea what you’re talking about. Which is not surprising, because either Baker doesn’t have any idea what he is talking about either or is intentionally misleading readers of this blog with his characterization of the decision

  8. 1 and 4, and 5 seem reasonable. 2 is idiotic; tariffs won’t solve anything but will hurt Americans. Who cares if Europeans want to tax themselves? Why should Americans pay more for German cars if Europeans have to pay more for… whatever? Let them. Since you don’t expand on what 3 is independent of tariffs, it’s also stupid, although I’m willing to hear about making “common cause” is aside from tariffs.

    Fundamentally why do we have to do anything? You don’t raise any real threats except pointless saber-rattling about how the Chinese aren’t getting it hard enough. Explain why this should matter to Americans independent of useless jargon like “judicial imperialism and Eurocentric hypocrisy”. Why the fuck should I care if Europeans are hypocrites?

    1. This makes it harder for US authorities to (legally) read Europeans’ WhatsApp messages. And given that presumably the Global War on Terror is still ongoing (at least I haven’t heard anyone declare victory, so it must be), that implies an existential threat to US National Security that cannot be tolerated.

      1. Of course that would simply put the US on the same grounds with EU as it is with every other country that doesn’t have an agreement with us. Like Russia, China, and Iran.

      2. Terrorism is not an existential threat to US National Security, and never has been. It is annoying, and hurts/kills US citizens, and gives politicians something to rail against, but terrorists can’t do anything to threaten the existence of the US.

        1. “but terrorists can’t do anything to threaten the existence of the US.”

          Really….

          Ever hear of something called “asymmetric warfare”?

          1. Yes, and it works fine if your goal is to get the Americans to leave whatever foreign country they’ve accidentally invaded, but it doesn’t really work if your goal is to make America not exist anymore.

      3. And we’re doing better with terrorism than Europe is…

      4. Let’s just say that terror won the Global War on Terror and call it quits. I am sure the Europeans can defend themselves just fine.

        1. Against terrorists? We can, yes. For starters, we try not to make it quite so easy for them to buy fire arms.

    2. To be fair, a bunch of what this data sharing might feed would probably be classified. But then say that, don’t just make boo noises about China.

      Though, I suppose boo noises about China is enough for most of Congress these days…

    3. 1 seems reasonable–there’s no point in continuing to treat European data specially if there’s no benefit to doing so.

      4 seems unlikely to be useful unless there were bilateral agreements with essentially all of the larger EU countries. But once US companies have come up with a solution for even one large country (either by hosting European data physically in Europe or by setting up stronger privacy protections), they can likely use that same solution for all of the rest. So this is only valuable if they can just ignore the markets not covered by these bilateral arrangements.

      If I’m interpreting 5 correctly it is just, “get Europeans to care less about privacy”. Given the passage of CCPA and pending legislation in a bunch of other states, it seems more likely that the US is going to come closer to the European model than the other way around. To get to Baker’s specific complaint, it’s far from obvious to me that it would be a bad outcome if US intelligence agencies had to work harder to get at US citizens private data as well despite all the hysteria about terrorism or whatever.

      1. “To get to Baker’s specific complaint, it’s far from obvious to me that it would be a bad outcome if US intelligence agencies had to work harder to get at US citizens private data as well despite all the hysteria about terrorism or whatever.”

        It’s worth pointing out (maybe again) that what the EU mainly objects to that (we believe) that European nationals data aren’t protected enough. US nationals data are protected a fair bit more than Europeans data due to things like the constitution etc.

        As a European I think that noone’s data is really protected much and while I realize that the cost of actually forcing the tech giants out of Europe would be large it is very hard to argue we have much sovereignty when one of the current main battlefields is completely in foreign hands. If Microsoft,Amazon and Google get run out of Europe due to this (not likely) and we get both the incentive and are also forced to get off our lazy arses and work on building our own infrastructure and systems that sounds like a win to me.

        Now I come from a small country and we’re quite used to kowtowing to someone else, with 10mil people the idea that we can defend against either the US, Russia or China for any significant amount of time is comical. I prefer kowtowing to the US but that preference is shrinking by the minute.

  9. Perhaps we should consider the possibility that the court is right; that section 702 offers inadequate privacy protections. After all, just because the intelligence community thinks they need some powers doesn’t mean they should get them (they want a lot of things!).

  10. Because American courts never decide that foreign laws that they have no authority to enforce are inadequate?

  11. How does so much right-wing authoritarianism get published by a self-described “often libertarian” blog at a self-proclaimed “leading libertarian” website?

    Faux libertarians — defensive conservatives in unconvincing libertarian drag — are among my favorite obsolete culture war casualties.

  12. Set condition 1SQ. Spin up lawyers 1 to 5 and 20 to 24. The use of mass litigation has been authorized.

    1. Don’t worry, they’re way ahead of you. Here is Lloyd v. Google (2019) in the Court of Appeal, granting permission to serve outside the jurisdiction in a representative action on behalf of four million iPhone users: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1599.html

      (It is currently pending before the Supreme Court.)

      Exactly what the damages should be is still to be worked out, but the figure of £750 per person has been bandied about, which would put the whole case in the low ten figures range.

  13. Man, …that was a really complicated way to say you’d like to speak to the manager.

    Butthurt cold-warriors sure do wax prolix when they discover the rest of the world isn’t all that afraid of them anymore.

  14. Gobsmacked 1, Enlightenment 0. Come back tomorrow.

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