Biden Issued E.O. Creating Secret Court "The Data Protection Review Court"

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At an undetermined date, in an undisclosed location, the Biden administration began operating a secretive new court to protect Europeans’ privacy rights under U.S. law.

Officially known as the Data Protection Review Court, it was authorized in an October 2022 executive order to fix a collision of European and American law that had been blocking the lucrative flow of consumer data between American and European companies for three years.

The court’s eight judges were named last November, including former U.S. Attorney General Eric Holder. Its existence has allowed companies to resume the lucrative transatlantic data trade with the blessing of EU officials.

The details get blurry after that.

The court’s location is a secret, and the Department of Justice will not say if it has taken a case yet, or when it will. Though the court has a clear mandate — ensuring Europeans their privacy rights under U.S. law — its decisions will also be kept a secret, from both the EU residents petitioning the court and the federal agencies tasked with following the law. Plaintiffs are not allowed to appear in person and are represented by a special advocate, appointed by the U.S. attorney general.

And critics worry it will tie the hands of U.S. intelligence agencies with an unusual power: It can make binding decisions on surveillance practices with federal agencies, which won’t be able to challenge those decisions.

“Until there’s some clarity on how that’s going to operate, I think you could expect the intelligence community to be nervous about what it might mean, especially since it’s not even clear what its caseload is going to look like,” said Matthew Waxman, a State Department and National Security Council veteran and chair of the national security law program at Columbia University.

For the European citizens it is supposed to help, the picture is just as murky. Privacy advocates argue it will be nearly impossible for European residents to bring cases, given they will have to know they are being surveilled to file a complaint.

“I don’t think anybody sitting around in Spain that is unhappy about his visa being denied is going to think that it could be based on data transfers to the U.S. and go through this process,” said Max Schrems, an Austrian privacy advocate whose lawsuits ended a previous transatlantic data deal.

For the business community, however, the court has already done its first job: Its very existence allowed EU regulators to finally bless the resumption of cross-border data flows last summer.

What happens next — or, perhaps, is already happening — is far less clear.

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