1. Thread on my and @ANewman_forward piece at Lawfare lawfareblog.com/schrems-ii-off…, which in turn builds on our recent book amzn.to/2UVnyI6 . Short version - the Schrems II decision taking down Privacy Shield transfers etc. doesn't mean what US commentators think it means.
2. US security people have reacted to the decision with disappointment, derision or anger (a strong sense of 'there go those crazy ECJ judges again' pervading the debate). They find the notion that international surveillance should be subjected to judicial scrutiny weird.
3. But this, we say, fundamentally misunderstands how surveillance has changed in a world of fast communications networks and interdependence. It's not just targeted and expensive pursuit of high value targets - instead it involves bulk collection of data on entire populations.
4. Global communications continued to be a largely lawless space, thanks to both self-conscious US strategy, and sharp disagreements among states (see further our forthcoming IO article dropbox.com/s/tvyxmwqvwwjf… ). But communications networks and national societies intertwined.
5. This makes it impossible to separate international surveillance from the domestic functioning of democracies. It's really hard to distinguish domestic from international. And as more and more data is swapped between countries, it's easier to evade national controls.
6. The US panopticon sweetspot of 2001-2013 - when it could gather up vast amounts of data with no real pushback - was politically unsustainable among democracies - it presumed that there would be no political pushback as global surveillance increased exponentially.
7. What we are seeing now - thanks in turn to @snowden and @maxschrems - is the undermining of the assumption that electronic commerce between countries could continue, even while those exchanges were subject to surveillance outside the control of law.
8 Judges are beginning to reinsert themselves - and they have a very plausible justification. Global surveillance carries very different political risks in a world of deep interdependence among national democracies than in a world of sparsely connected antagonistic states.
9. And US national security people need to start thinking about how to protect their country's interests in quite different ways. There is a lot of talk at the moment about deeper cooperation between democracies on technology and communications.
10. What that talk doesn't recognize is that such political cooperation is likely impossible without cross-national bargains to protect civil liberties and civil rights. If the national security people want denser cross-national engagement and exchange
11. They are not going to be able to build this on the foundations of the current national security model. Instead, they need to build in cross-national protections for privacy and civil liberties as part of the foundation. That will be mentally hard for US security people
12. Who are used to thinking about national security as fundamentally autonomous from national societies. But in a world where (as @brooks_rosa has put it), war has become everything, they're going to have to recalibrate their understanding of what security is.
13. There are real global informational threats to the workings of national democracies. They cannot be addressed through international cooperative arrangements that don't themselves have effective and justiciable crossnational protections for citizens' rights & liberties. Finis.
