Amongst president Trump’s many decrees in the last week was an ostensibly shocking order to ensure non-Americans wouldn’t get the same privacy rights as U.S. citizens. But Trump didn’t actually make any significant changes to U.S. law. Instead, according to one legal expert, he sent a message to immigrants: the Obama administration’s plans to guarantee better privacy for individuals travelling or moving to the U.S. are being canned.
The wording in the Enhancing Public Safety executive order signed yesterday caused immediate, inevitable panic: “Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”
Edward Snowden hit Twitter to warn the world of the order’s impact, claiming it could end a legal framework for personal data transfer between the U.S. and Europe, known as the Privacy Shield. The European Parliament’s special rapporteur for data protection, Jan Philipp Albrecht, also warned of the possible end of the Privacy Shield. That agreement came into force in August last year after European courts determined the previous deal, known as Safe Harbor, didn’t guarantee adequate privacy for citizens’ data when it crossed the Atlantic. As many as 1,500 companies, including Apple, Google and Microsoft, have since set themselves up to be compliant with the Privacy Shield’s rules.
But the order had nothing to do with that transatlantic agreement. It was to do with the Privacy Act, which has always been focused on guaranteeing better protections for data of American citizens only, not outsiders. And Trump’s decision should only affect the privacy of data handled by government agencies, not private companies. Indeed, the only way in which the order may affect non-U.S. individuals lies in the manner the Department of Homeland Security handles personal information. That’s because in 2009, the DHS updated its policy to ensure that where both U.S. and non-U.S. citizens’ data was stored on the same system, the information would get the same level of protection. But that update didn’t extend all Privacy Act rights to a non-U.S. citizen, most importantly the right to take the U.S. government to court for breaches of the law.
When questioned by FORBES about the relevance of the Privacy Shield to Trump’s order, Snowden responded, tweeting the issues were bigger than the Privacy Shield:
There’s another reason Trump’s move shouldn’t make much of an impact on foreign people’s privacy, as noted by Susan Hennessey, former National Security Agency counsel, now of the Brookings Institute. “More importantly, in 2015 Congress passed a law, the Judicial Redress Act, which extended the remedies of the Privacy Act to foreign citizens from designated countries. So for those countries the relevant action would be a change to the attorney general designations and not an executive order,” she said.
A message for immigrants
Rather than take any major action affecting privacy law, Trump has taken the government in a different direction to the Obama administration. In 2015, the White House had moved to guarantee better privacy rights to non-Americans. In that year, John Podesta (yes, the same Clinton campaign chief who had his email hacked, allegedly by Russians) wrote that the government’s big data and privacy working group had recommended Privacy Act protections be extended to non-U.S. persons “to the extent practicable.”
“The Office of Management and Budget is actively working to implement that recommendation. The administration is also working with Congress on legislation that would extend certain rights of judicial redress to EU citizens.”
But Trump is now reversing that move as part of his anti-immigration stance. And that’s largely what the Privacy Act announcement was about, said Neema Singh Guliani, legislative counsel with the American Civil Liberties Union (ACLU).
“I think it’s significant – it sends a message to both undocumented and legal immigrants that their sensitive information is not protected. It’s also unclear how or whether the Trump administration plans to use these relaxed policies to further their immigration agenda.”