Law professor, now at Georgia Tech, worked in White House on privacy and cyber. Sr. Counsel at Alston & Bird.
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Articles by Peter Swire
AI such as Mythos Preview raises the urgency of cross-border flows of cybersecurity data
Cybersecurity defenders are scrambling to respond to frontier artificial intelligence systems such as Claude’s Mythos Preview.
Section 702 foreign surveillance law lives on, but privacy fight continues
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Section 702 foreign surveillance law lives on, but privacy fight continues
By Peter Swire, Professor of Law and Ethics, Georgia Institute of Technology What would you do if you had to vote in Congress on a crucial national security program, when you also knew that the FBI had systematically ignored privacy safeguards in the program for years? That was the choice that Congress faced in April, when it ultimately decided to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, known as FISA.
Section 702 foreign surveillance law lives on, but privacy fight continues
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Section 702 foreign surveillance law lives on, but privacy fight continues Original
What would you do if you had to vote in Congress on a crucial national security program, when you also knew that the FBI had systematically ignored privacy safeguards in the program for years? That was the choice that Congress faced in April, when it ultimately decided to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, known as FISA. Section 702 originally became law in 2008, when a great deal of previously “foreign” surveillance had shifted to the United States.
The Executive Action on Sensitive Bulk and Government-Related Data Sales to Adversary Nations
Introduction On February 28, 2024, the Biden administration issued an executive order (EO) alongside an unofficial signed Department of Justice (DOJ) advance notice of proposed rulemaking (ANPRM) outlining rules to implement that order. These actions represent a sea change in the U.S. approach to data policy by creating an authority to review, restrict, and potentially prohibit transfers of Americans’ data to specific destinations for the first time.
Limiting Data Broker Sales in the Name of U.S. National Security: Questions on Substance and Messaging
Published by The Lawfare Institute in Cooperation With A new executive order issued today contains multiple provisions, most notably limiting bulk sales of personal data to “countries of concern.” The order has admirable national security goals but quite possibly would be ineffective and may be counterproductive. There are serious questions about both the substance and the messaging of the order. The new order combines two attractive targets for policy action.
CBDF Research Fellow Theodore Christakis Publishes Study on Cross-Border Data Transfers and the EU’s “Zero Risk” Approach | JD Supra
Theodore Christakis, Professor of International Law at the University Grenoble Alpes and Senior Fellow and Director of Research for Europe at the Cross-Border Data Forum, has published a new comprehensive analysis on cross-border transfers of personal data and the EU’s data protection authorities’ “Zero Risk” theory developed since the CJEU Schrems II Judgment. Prof.
Assessing U.S. Data Policy Toward China: A Proposed Framework
Access to and use of personal data is at the forefront of the U.S.-China technology conflict. Republicans and Democrats have found common ground in the concern that unacceptable national security and privacy risks arise from Beijing’s access to U.S. persons’ data through open commercial channels.
A Framework for Assessing U.S. Data Policy Toward China
To view a PDF version of this report, please click here. These statements are attributable only to the authors, and their publication here does not necessarily reflect the view of the Cross-Border Data Forum or any participating individuals or organizations.
The Bipartisan, Bicameral Privacy Proposal Is a Big Deal
On June 3, the House Committee on Energy and Commerce posted a press release, legislative language, and a section-by-section analysis for a federal online privacy bill, the American Data Privacy and Protection Act (ADPPA), with both bipartisan and bicameral support.It’s always a good bet that broad privacy legislation will fail to pass, and any law is difficult to pass in this Congress. With that said, the new bill language is significant for at least two reasons.
The Bipartisan, Bicameral Privacy Proposal Is a Big Deal
Published by The Lawfare Institute in Cooperation With On June 3, the House Committee on Energy and Commerce posted a press release, legislative language, and a section-by-section analysis for a federal online privacy bill, the American Data Privacy and Protection Act (ADPPA), with both bipartisan and bicameral support.It’s always a good bet that broad privacy legislation will fail to pass, and any law is difficult to pass in this Congress.
EU/US Adequacy Negotiations and the Redress Challenge: How to Create an Independent Authority with Effective Remedy Powers
EU/US Adequacy Negotiations and the Redress Challenge: How to Create an Independent Authority with Effective Remedy Powers 16 February 2022/ By Theodore Christakis, Kenneth Propp and Peter Swire / Can the U.S. Government create, by non-statutory means, an independent redress authority capable of providing an effective remedy for a European person who believes that her or his rights have been infringed by an intelligence service?
EU/US Adequacy Negotiations and the Redress Challenge: Whether a New U.S. Statute is Necessary to Produce an “Essentially Equivalent” Solution
EU/US Adequacy Negotiations and the Redress Challenge: Whether a New U.S. Statute is Necessary to Produce an “Essentially Equivalent” Solution 31 January 2022/ By Theodore Christakis, Kenneth Propp and Peter Swire Must the U.S. Congress change statutory law to solve the major issue of “redress” in the EU-US adequacy negotiations?
Towards OECD Principles for Government Access to Data
In December 2020, governments belonging to the Organization for Economic Cooperation and Development (OECD) quietly embarked on an unprecedented exercise to formulate common principles governing their access, for national security and law enforcement purposes, to personal data held by the private sector.
Towards OECD Principles for Government Access to Data: Can Democracies Show the Way?
In December 2020, governments belonging to the Organization for Economic Cooperation and Development (OECD) quietly embarked on an unprecedented exercise to formulate common principles governing their access, for national security and law enforcement purposes, to personal data held by the private sector.
Towards OECD Principles for Government Access to Data
Published by The Lawfare Institute in Cooperation With In December 2020, governments belonging to the Organization for Economic Cooperation and Development (OECD) quietly embarked on an unprecedented exercise to formulate common principles governing their access, for national security and law enforcement purposes, to personal data held by the private sector.
U.K.’s Post-Brexit Strategy on Cross-Border Data Flows
On Aug. 25, the U.K. Department for Digital, Culture, Media & Sport (DCMS) released important details about its post-Brexit strategy for cross-border flows of personal data. The U.K. government emphasized the importance of international transfers of personal data to global trade and notably named the United States as a “priority partner” for negotiating an adequacy determination.
U.K.’s Post-Brexit Strategy on Cross-Border Data Flows
On Aug. 25, the U.K. Department for Digital, Culture, Media & Sport (DCMS) released important details about its post-Brexit strategy for cross-border flows of personal data. The U.K. government emphasized the importance of international transfers of personal data to global trade and notably named the United States as a “priority partner” for negotiating an adequacy determination.
Using the Portability and Other Required Transfers Impact Assessment (“Port-Ia”) in Antitrust Law
Data portability is attracting attention, especially due to recent portability laws in Europe and California, and the hope that it can reduce the market power of digital platforms. This article discusses the potential pro-competitive and other benefits of new data portability requirements, including for lock-in effects, network effects, and barriers to entry.
After Schrems II: A Proposal to Meet the Individual Redress Challenge
In the aftermath of the July 16 Schrems II judgment by the Court of Justice of the European Union (CJEU) invalidating a principal legal method for transferring personal data from EU territory to the United States, the future of data flows for transatlantic commerce is dangerously uncertain.
After Schrems II: A Proposal to Meet the Individual Redress Challenge
Published by The Lawfare Institute in Cooperation With In the aftermath of the July 16 Schrems II judgment by the Court of Justice of the European Union (CJEU) invalidating a principal legal method for transferring personal data from EU territory to the United States, the future of data flows for transatlantic commerce is dangerously uncertain.
The Lawfare Podcast: Schrems II and the Future of Transatlantic Data
Published by The Lawfare Institute in Cooperation With Last week, the European Court of Justice released its much awaited decision in Data Protection Commissioner v Maximilian Schrems, commonly known as Schrems II, which addressed which privacy requirements governments and corporations within the European Union will be required to secure before participating in international data transfers.
Geopolitical Implications of the European Court’s Schrems II Decision
On July 16, the Court of Justice of the European Union (CJEU) invalidated one principal legal method for the transfer of personal data from EU territory to the United States and cast substantial doubt on the validity of the other. U.S. intelligence agencies can utilize personal data initially transferred for commercial purposes to the U.S. from Europe.
Geopolitical Implications of the European Court’s Schrems II Decision
On July 16, the Court of Justice of the European Union (CJEU) invalidated one principal legal method for the transfer of personal data from EU territory to the United States and cast substantial doubt on the validity of the other. U.S. intelligence agencies can utilize personal data initially transferred for commercial purposes to the U.S. from Europe.
Security, Privacy and the Coronavirus: Lessons From 9/11
A few days after Sept. 11, 2001, I entered the Mott House on Maryland Avenue, not far from the Senate. The national D.C. office of the ACLU was hosting a somber meeting of privacy and civil liberties experts from across the political spectrum. We all recognized that everything on our agenda had changed drastically. We were in a new era, where security was paramount, and privacy a policy afterthought at best.
Security, Privacy and the Coronavirus: Lessons From 9/11
A few days after Sept. 11, 2001, I entered the Mott House on Maryland Avenue, not far from the Senate. The national D.C. office of the ACLU was hosting a somber meeting of privacy and civil liberties experts from across the political spectrum. We all recognized that everything on our agenda had changed drastically. We were in a new era, where security was paramount, and privacy a policy afterthought at best.
Foreign Intelligence and Other Issues in the Initial Opinion in Schrems II
On Dec. 19, Advocate General (AG) Henrik Saugmandsgaard Øe issued a long-awaited initial opinion in the “Schrems II” case before the Court of Justice of the European Union (CJEU).
Foreign Intelligence and Other Issues in the Initial Opinion in Schrems II
Published by The Lawfare Institute in Cooperation With On Dec. 19, Advocate General (AG) Henrik Saugmandsgaard Øe issued a long-awaited initial opinion in the “Schrems II” case before the Court of Justice of the European Union (CJEU).
The U.K.-U.S. CLOUD Act Agreement Is Finally Here, Containing New Safeguards
Editor's note: This piece is cross-posted at Just Security. On Oct. 7, the United Kingdom and the United States released the text of the long-awaited data-sharing agreement—the first of the executive agreements envisioned by the CLOUD Act, enacted in May 2018 in order to better facilitate cross-border access to data in the investigation of serious crime.
The U.K.-U.S. CLOUD Act Agreement Is Finally Here, Containing New Safeguards
Published by The Lawfare Institute in Cooperation With Editor's note: This piece is cross-posted at Just Security. On Oct. 7, the United Kingdom and the United States released the text of the long-awaited data-sharing agreement—the first of the executive agreements envisioned by the CLOUD Act, enacted in May 2018 in order to better facilitate cross-border access to data in the investigation of serious crime.
The UK-US CLOUD Act Agreement is Finally Here, Containing New Safeguards
On Monday, the United Kingdom and the United States released the text of the long-awaited data-sharing agreement – the first of the executive orders envisioned by the CLOUD Act, enacted in May 2018 in order to better facilitate cross-border access to data in the investigation of serious crime.
White Paper on Privacy Issues in Proposed New National Medical Claims Database | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Drafting the NIST Privacy Framework: Workshop #2
About On May 13-14, 2019, NIST will hold the second in a series of public workshops on the development of the Privacy Framework: An Enterprise Risk Management Tool. We thank Professors Annie Antón and Peter Swire, and the Georgia Tech Scheller College of Business, in Atlanta, Georgia, for hosting this event. Drafting the NIST Privacy Framework: Workshop #2 will provide an opportunity for attendees to actively engage in facilitated discussions to advance the development of the framework.
The Important, Justifiable and Constrained Role Of Nationality In Foreign Intelligence Surveillance
This Lawfare post summarizes a longer essay we are publishing today with the Hoover Working Group on National Security, Technology and Law. Our essay addresses whether governments ever have a justified basis for treating targets of surveillance differently, in any way, based on nationality. This issue is of general importance and has become particularly important in the current legal debates about whether the U.S. has “adequate” protection of personal privacy under EU law.
The Important, Justifiable and Constrained Role Of Nationality In Foreign Intelligence Surveillance
Published by The Lawfare Institute in Cooperation With This Lawfare post summarizes a longer essay we are publishing today with the Hoover Working Group on National Security, Technology and Law. Our essay addresses whether governments ever have a justified basis for treating targets of surveillance differently, in any way, based on nationality.
A Pedagogic Cybersecurity Framework
Real" cybersecurity today devotes enormous effort to non-code vulnerabilities and responses. The Cybersecurity Workforce Frameworka of the National Initiative for Cybersecurity Education lists 33 specialty areas for cybersecurity jobs. Ten of the specialty areas primarily involve coding, but more than half primarily involve non-code work (15 areas, in my estimate) or are mixed (eight areas, per my assessment).
Recommendations for the Potential U.S.-U.K. Executive Agreement under the Cloud Act
Congress this fall will likely face the first executive agreement negotiated under the new Cloud Act. The U.S. and United Kingdom have been negotiating such an agreement since at least 2016. Recently, the British government introduced a new bill designed to create the legal structure for the U.K. side of the agreement. The Justice Department this summer has met with academic experts, civil-society members, and others who have been involved in issues related to the agreement.
Recommendations for the Potential U.S.-U.K. Executive Agreement Under the Cloud Act
Congress this fall will likely face the first executive agreement negotiated under the new Cloud Act. The U.S. and United Kingdom have been negotiating such an agreement since at least 2016. Recently, the British government introduced a new bill designed to create the legal structure for the U.K. side of the agreement. The Justice Department this summer has met with academic experts, civil-society members, and others who have been involved in issues related to the agreement.
A Possible EU-US Agreement on Law Enforcement Access to Data?
On May 22, Attorney General Jeff Sessions will meet with senior European law enforcement officials. In the wake of the Cloud Act, enacted by Congress at the end of March, the possibility of an EU-U.S. agreement on law enforcement access to digital evidence is almost certain to be on the table. The EU is separately moving ahead with its proposed “E-Evidence” Regulation, which would streamline law enforcement access to data among its 28 member-states.
A Possible US-EU Agreement on Law Enforcement Access to Data?
[Cross-posted on Lawfare] Attorney General Jeff Sessions is scheduled to fly to Sofia, Bulgaria for a May 22 meeting with senior European law enforcement officials. In the wake of the Cloud Act, enacted by Congress at the end of March, the possibility of an EU-US agreement on law enforcement access to digital evidence is almost certain to be on the table.
A Possible EU-U.S. Agreement on Law Enforcement Access to Data?
On May 22, Attorney General Jeff Sessions will meet in with senior European law enforcement officials. In the wake of the , enacted by Congress at the end of March, the possibility of an EU-U.S. agreement on law enforcement access to digital evidence is almost certain to be on the table. The EU is separately moving ahead with its proposed “ , which would streamline law enforcement access to data among its 28 member-states.
A Possible EU-US Agreement on Law Enforcement Access to Data?
On May 22, Attorney General Jeff Sessions will meet in with senior European law enforcement officials. In the wake of the Cloud Act, enacted by Congress at the end of March, the possibility of an EU-U.S. agreement on law enforcement access to digital evidence is almost certain to be on the table. The EU is separately moving ahead with its proposed “E-Evidence” Regulation, which would streamline law enforcement access to data among its 28 member-states.
The Importance of Accurate Retrieval of Data Subjects’ Personal Data in Complying with GDPR Individual Rights Requirements | JD Supra
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Suggestions for Implementing the Cloud Act
At the end of March, President Trump signed the omnibus budget bill into law. Tacked on at the end was the Cloud Act—legislation designed to facilitate law enforcement access to data across borders and the subject of extensive commentary on this blog and elsewhere.
The CLOUD Act and its Impact on Cross-Border Access to the Contents of Communications | JD Supra
On Friday morning, March 23, President Trump signed the $1.3 trillion omnibus spending bill into law, including the Clarifying Lawful Overseas Use of Data (CLOUD) Act, and in doing so established a sea change in the rules for cross-border government access to the contents of electronic communications.
Privacy and Civil Liberties Under the CLOUD Act: A Response
In a post last week, Neema Singh Guliani of the ACLU and Naureen Shah of Amnesty International disagreed with our earlier arguments as to why the CLOUD Act is good for privacy and human rights. After carefully reviewing their points, we explain here why we hold to our initial conclusions and why we fear that their approach will result in a reduction of the very privacy benefits that we, and they, so strongly support.
Privacy and Civil Liberties Under the CLOUD Act: A Response
In a post last week, Neema Singh Guliani of the ACLU and Naureen Shah of Amnesty International disagreed with our earlier arguments as to why the CLOUD Act is good for privacy and human rights. After carefully reviewing their points, we explain here why we hold to our initial conclusions and why we fear that their approach will result in a reduction of the very privacy benefits that we, and they, so strongly support.
Why the CLOUD Act is Good for Privacy and Human Rights
A dozen privacy and human rights groups have opposed the bipartisan CLOUD Act regulating cross-border data access, claiming that it will erode basic liberties. They describe the bill as helping “empower” foreign governments to commit human rights abuses; endangering constitutional rights; and even, in an email sent to the Hill this week, undercutting LGBT rights around the world. We respectfully disagree.
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