Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

114th Congress    }                                  {   Rept. 114-294
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                  {          Part 1

======================================================================



 
                      JUDICIAL REDRESS ACT OF 2015
                                _______
                                

October 20, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1428]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1428) to extend Privacy Act remedies to citizens of 
certified states, and for other purposes, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Performance Goals and Objectives.................................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Committee Jurisdiction Letters...................................     9

                          Purpose and Summary

    The Judicial Redress Act provides citizens of covered 
foreign countries with the ability to bring suit in Federal 
district court for certain Privacy Act violations by the 
Federal Government related to the sharing of law enforcement 
information between the United States and a covered foreign 
government. Any such lawsuit is subject to the same terms and 
conditions that apply to U.S. citizens and lawful permanent 
residents who seek redress against the Federal Government under 
the Privacy Act. Under current law, only U.S. citizens and 
lawful permanent residents may bring claims against the Federal 
Government pursuant to the Privacy Act despite the fact that 
many countries provide U.S. citizens with the ability to seek 
redress in their courts when their privacy rights are violated. 
Enactment of this legislation is necessary in order to promote 
and maintain law enforcement cooperation and information 
sharing between foreign governments and the United States and 
to complete negotiations of the Data Protection and Privacy 
Agreement with the European Union.

                Background and Need for the Legislation

    For many years, the European Union and many of its member 
states have complained to U.S. officials about the fact that 
the Privacy Act of 1974\1\ only applies to U.S. citizens and 
lawful permanent residents, and not to foreign citizens. 
Although other U.S. laws provide any person with judicial 
remedies for specified types of privacy violations, the absence 
of a broader right of action with respect to privacy violations 
by the Federal Government has remained a point of friction with 
the European Union. Complaints have accelerated as it has 
become possible, due to digitalization of the economy, and 
indeed necessary for public security reasons, for U.S. and EU 
law enforcement agencies to exchange increasing quantities of 
information. In contrast to the Privacy Act, U.S. citizens have 
rights under EU and member state data protection laws to 
challenge adverse decisions by European government agencies in 
court.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. 552a.
---------------------------------------------------------------------------
    Following several highly publicized, unauthorized 
disclosures of classified U.S. intelligence information, 
European officials have expressed increased concerns about U.S. 
intelligence collection and the need for enhanced U.S. privacy 
protections for EU data.\2\ Indeed, these disclosures have led 
to threats by the European Union to suspend the Safe Harbor 
Framework,\3\ the U.S.-EU Passenger Name Agreement,\4\ and the 
Terrorist Finance Tracking Program Agreement.\5\
---------------------------------------------------------------------------
    \2\See, e.g., European Commission Communication to the European 
Parliament and Council, Rebuilding Trust in EU-US Data Flows (Nov. 
2013) available at http://ec.europa.eu/justice/data-protection/files/
com_2013_846_en.pdf.
    \3\The U.S.-EU Safe Harbor Framework is an important tool for U.S. 
businesses to avoid experiencing interruptions in their business 
dealings with the European Union or facing prosecution by EU member 
state authorities under EU member state privacy laws. Under the Safe 
Harbor Framework, U.S. businesses may register with the U.S. Department 
of Commerce and self-certify compliance with a variety of data privacy 
practices.
    \4\This agreement regulates the transfer of passenger name records 
by air carriers to the United States.
    \5\The Terrorist Finance Tracking Program Agreement between the 
European Union and the United States allows U.S. authorities to monitor 
financial transactions on the Society for Worldwide Interbank Financial 
Telecommunications (Swift).
---------------------------------------------------------------------------
    Moreover, since 2011, the United States has been in the 
process of negotiating a Data Protection and Privacy Agreement 
(DPPA, often referred to as the ``umbrella agreement'') with 
the European Union, in order to address the EU desire for clear 
standards governing the privacy of personal information 
exchanged for law enforcement purposes. The United States 
entered into these negotiations in order to ensure that robust 
information sharing with Europe for law enforcement purposes 
will continue. During the course of the negotiations, the 
European Commission and Parliament have both made it clear that 
there will be no agreement without the enactment of a U.S. law 
that enables EU citizens to sue the U.S. government for major 
privacy violations.\6\
---------------------------------------------------------------------------
    \6\Claude Barfield, A Good Data Deal, U.S. News & World Report 
(Sept. 10, 2015) (``The umbrella agreement will not go into effect 
until the U.S. Congress legislates new judicial rights for EU 
citizens.''); David Meyer, EU and U.S. Sign Data Protection ``Umbrella 
Agreement,'' Politico (Sept. 8, 2015) (``[A]cceptance by the European 
Parliament is contingent on the U.S. first passing legislation that 
would give Europeans limited judicial redress over the misuse of their 
data by U.S. Federal agencies.'').
---------------------------------------------------------------------------
    In order to address the concerns of the European Union, and 
move forward with negotiations on the umbrella agreement, on 
June 25, 2014, the Justice Department announced that, as part 
of successfully concluding the negotiations between the United 
States and the European Union, ``the Obama Administration is 
committed to seeking legislation that would ensure that, with 
regard to personal information transferred within the scope of 
our proposed DPPA Regarding Police and Judicial Cooperation, EU 
citizens would have the same right to seek judicial redress for 
intentional or willful disclosures of protected information, 
and for refusal to grant access or to rectify any errors in 
that information, as would a U.S. citizen under the Privacy 
Act.''\7\ A legislative proposal to implement that commitment 
was developed with the work of the Justice Department and the 
Members of Congress who introduced the Judicial Redress Act 
earlier this year.
---------------------------------------------------------------------------
    \7\Press Release, U.S. Department of Justice, Attorney General 
Holder Pledges Support for Legislation to Provide E.U. Citizens with 
Judicial Redress in Cases of Wrongful Disclosure of Their Personal Data 
Transferred to the U.S. for Law Enforcement Purposes (June 25, 2014).
---------------------------------------------------------------------------

                               DISCUSSION

    The Judicial Redress Act provides citizens of covered 
countries with a limited number of civil remedies, similar to 
those provided to U.S. citizens and lawful permanent residents 
under the Privacy Act.\8\ This narrowly tailored legislation 
enables citizens of designated foreign countries to bring suit 
against the Federal Government with respect to information 
obtained through international law enforcement channels under 
the same terms and restrictions as a U.S. citizen or lawful 
permanent resident is subject to under the Privacy Act.
---------------------------------------------------------------------------
    \8\The Privacy Act contains a comprehensive and detailed set of 
requirements for the management of confidential records held by 
Executive Branch agencies. It prohibits Federal agencies from 
disclosing ``any record which is contained in a system of records by 
any means of communication to any person, or to another agency'' 
without the consent of ``the individual to whom the record pertains,'' 
unless the disclosure falls within one or more enumerated exceptions to 
the Act. 5 U.S.C. Sec. 552a(b). The Privacy Act creates a private cause 
of action against an agency for its willful or intentional violation of 
the Act and allows for the recovery of ``actual damages sustained by 
the individual'' as a result of an agency's violation of the Act. 5 
U.S.C. Sec. Sec. 552a(g)(1)(D), (g)(4).
---------------------------------------------------------------------------
    Specifically, the bill extends certain Privacy Act 
protections to citizens of a foreign country that has been 
designated as a ``covered country.'' A country may be 
designated as a ``covered country'' if the Attorney General 
determines that either: 1) the country or regional economic 
integration organization has an agreement in place with the 
United States that provides appropriate privacy protections for 
information shared for law enforcement purposes, or 2) the 
country or regional economic organization effectively shares 
law enforcement information with the United States and has 
appropriate privacy protections in place for such shared 
information. Once a country has been designated as a covered 
country, its citizens may bring suit in Federal district court 
against the Federal Government for certain violations of the 
Privacy Act. Citizens of covered countries are granted the same 
rights that U.S. citizens and lawful permanent residents 
currently have to seek redress under the Privacy Act for access 
to, or correction of, records about them that are maintained by 
a designated Federal agency, or to seek redress with respect to 
the unauthorized, intentional or willful disclosure of those 
records.
    The Justice Department believes that enactment of this 
legislation is critical for a number of reasons. First, the 
DPPA umbrella agreement cannot be fully implemented unless the 
Judicial Redress Act is enacted. The European Commission and 
Parliament have both made it clear that there will be no 
agreement without the legislation. The negative fallout from 
failure to enact the Judicial Redress Act and finalize the DPPA 
will almost certainly include diminished law enforcement 
cooperation, and EU insistence that nearly all law enforcement 
cooperation be channeled into the formal channel of mutual 
legal assistance. The diversion of multiple high volume 
channels of cooperation into a single channel would 
dramatically reduce law enforcement cooperation.
    Second, the European Union is drafting new data protection 
legislation through which international transfers of personal 
information of EU citizens will be restricted unless the 
recipient country meets certain privacy requirements. Entry 
into force of the DPPA would meet the criteria of the draft 
legislation as to law enforcement sharing but, without it, the 
United States would be subject to increased future 
restrictions.
    Third, this legislation and the DPPA will help the United 
States mitigate the climate of suspicion and mistrust that 
resulted from the unauthorized disclosures of classified 
information. Fourth, the European Commission has stated that it 
will not finalize the revision of the Safe Harbor Arrangement 
unless and until the DPPA can be successfully concluded. The 
Safe Harbor Arrangement is essential to American businesses 
operating in Europe and their ability to transfer European data 
to their U.S. operations.\9\ Finally, as mentioned above, other 
key U.S. law enforcement agreements with the EU are also at 
risk unless the Judicial Redress Act is enacted and the DPPA 
successfully enters into force.
---------------------------------------------------------------------------
    \9\See Letter from Information Technology Industry Council et al. 
to the Hon. John Boehner et al. (April 28, 2015) (The Judicial Redress 
Act will ``help restore the public trust necessary for the continued 
success of U.S. industry [and] . . . will help foster a robust 
relationship between the U.S. and the EU and rebuild trust in U.S.-EU 
data flows. Transnational data flows serve as a key component of the 
digital trade that increasingly drives U.S. economic growth.'').
---------------------------------------------------------------------------
    In sum, this legislation is critical to reestablishing a 
trusting relationship between the European Union and the United 
States, to ensuring continued strong law enforcement 
cooperation between the United States and Europe, and to 
preserving the ability of American companies to do business in 
Europe.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
1428.

                        Committee Consideration

    On September 17, 2015, the Committee met in open session 
and ordered the bill H.R. 1428 favorably reported, without 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 1428.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1428, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 28, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1428, the 
``Judicial Redress Act of 2015.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Marin 
Burnett, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                H.R. 1428--Judicial Redress Act of 2015.

      As ordered reported by the House Committee on the Judiciary 
                         on September 17, 2015.




    H.R. 1428 would provide certain foreign persons and 
entities with the means to sue the United States in District 
Court for unauthorized disclosure of personal information. 
Currently, under the Privacy Act, United States citizens and 
lawful permanent residents may bring claims against the Federal 
Government if their personal information is disclosed in an 
unauthorized manner.
    The bill would allow foreign persons in designated 
countries to bring suit against the United States under the 
terms of the Privacy Act for unlawful disclosure of information 
obtained in connection with international law enforcement 
efforts. This new basis for suing the United States would 
probably increase the number of claims reviewed by the Federal 
courts.
    Based on information from the Administrative Office of the 
United States Courts (AOUSC), CBO expects that the increase in 
claims would not have a substantial effect on the workload of 
the Federal courts. Therefore, CBO estimates that the 
additional discretionary costs to implement H.R. 1428 would not 
be significant.
    Enacting H.R. 1428 would affect direct spending; therefore, 
pay-as-you-go procedures apply. CBO expects that the increased 
number of claims would likely result in increased payments out 
of the Claims and Judgment Fund (a permanent, indefinite 
appropriation for claims and judgments against the United 
States). However, because the median payment amount over past 
years for such claims is less than $30,000, and fewer than 10 
claims have been paid annually in recent years, the incremental 
increase in the cost of successful claims would probably be 
small. Thus, CBO estimates that the increase in annual direct 
spending under H.R. 1428 would be insignificant. Enacting the 
bill would not affect revenues.
    H.R. 1428 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Marin Burnett. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1428 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1428 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1428 provides citizens of covered foreign countries with the 
ability to bring suit in Federal district court for certain 
Privacy Act violations by the Federal Government.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1428 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

Section 1. Short title.
    Section 1 provides that the short title is the ``Judicial 
Redress Act of 2015.''
Section 2. Extension of Privacy Act Remedies to Citizens of Designated 
        Countries.
    Subsection (a) provides that a covered person may bring a 
civil action with respect to covered records to the same extent 
and subject to the same limitations that an individual covered 
by the Privacy Act may bring a lawsuit under 5 U.S.C. 
Sec. 552a(g)(1)(D) with respect to: (1) intentional or willful 
violations of 5 U.S.C. Sec. 552a(b), and (2) against a 
designated Federal agency or component under 5 U.S.C. 
Sec. Sec. 552a(g)(1)(A) & (B). Subsection (b) provides that 
subsection (a) is the exclusive remedy available to covered 
person under the Act. Subsection (c) further provides that for 
purposes of the civil action described in subsection (a), a 
covered person shall have the same rights and be subject to the 
same limitations as an individual covered by the Privacy Act 
has under 5 U.S.C. Sec. 552a.
    Subsection (d)(1) sets forth how a country is designated as 
a ``covered country'' for purposes of the Act. The subsection 
provides that a foreign country, regional economic integration 
organization, or a member country of such organization may be 
designated as a covered country if the Attorney General, with 
the concurrence of the Secretary of State, the Secretary of the 
Treasury, and the Secretary of Homeland Security, determines 
that the country or organization has entered into an agreement 
with the United States that provides for appropriate privacy 
protections for information shared for law enforcement purposes 
or that such entity has effectively shared law enforcement 
information with the United States and has appropriate privacy 
protections for such shared information.
    Subsection (d)(2) sets forth the circumstances under which 
a covered country designation may be removed. If the Attorney 
General, with the concurrence of the specified agency heads, 
determines that a covered country is not complying with an 
agreement described in subsection (d)(1)(A), no longer meets 
the requirements set forth in subsection (d)(1)(B), or impedes 
the transfer of law enforcement information to the United 
States by a private entity or person, the Attorney General may 
remove the covered country designation.
    Subsection (e) details how a Federal agency or component 
thereof is designated as a ``designated Federal agency or 
component.'' The subsection provides that the Attorney General 
may not designate any agency or component outside of the 
Justice Department without the concurrence of the head of the 
relevant agency or of the agency to which the component 
belongs. Subsection (e) further provides that the Attorney 
General may designate a Federal agency or component if the 
Attorney General determines that information exchanged by such 
agency with a covered country is within the scope of an 
agreement referred to in subsection (d)(1)(A) or that 
designating such agency or component thereof is in the law 
enforcement interests of the United States.
    Subsection (f) provides that the Attorney General shall 
publish each determination made under subsections (d) and (e) 
in the Federal Register and that such determinations shall not 
be subject to judicial or administrative review.
    Subsection (g) provides that the United States District 
Court for the District of Columbia shall have exclusive 
jurisdiction over any claim arising under the Act.
    Subsection (h) defines the terms: agency, covered country, 
covered person, covered record, designated Federal agency or 
component, and individual. Subsection (i) provides that nothing 
in the Act shall be construed to waive any applicable privilege 
or require the disclosure of classified information and that, 
upon an agency's request, the district court shall review in 
camera and ex parte any submission by the agency in connection 
with this subsection. Subsection (j) provides that the Act 
shall take effect 90 days after the date of its enactment.

                     Committee Jurisdiction Letters

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 [all]