tv Key Capitol Hill Hearings CSPAN November 2, 2015 7:00pm-9:01pm EST
there, we have, of course, hundreds of thousands of mexican workers who had been participating in the basero program with no real pathway then to immigrate permanently into the u.s. labor market. this is one of the factors contributing to the growth of the undocumented population, right? at the same time, we have employers who are continuing to rely on that labor supply and, therefore, turning to undocumented labor. now there's some interesting historical lit tur around this. was it all nefarious in terms of mexican workers? certainly some part of it was intentional. there was a significant lobby at the time pushing for the exclusion of latin american workers or latin american visas with the concern that they may overtake the u.s. population. there's other lit tur that interestingly notes what's happening in the agricultural sector was mechanicization. thinking technology would save
us in terms of harvesting cotton and tomatoes. at the end of the basero program is one significant impact. also what we see at the same time was there was not -- not only was there a number of visas available to mexican nationals, right, but we also see a shift in the temporary worker programs. so at this time, there had been, prior to 1965, a temporary worker program, h2 program. it was relatively small in scale and continues to be relatively small in scale. prior to 1965, the burden was on the government to show that the workers that were coming in under the temporary programs would not harm the u.s. workforce. beginning in 1965, that burden then shifted to employers. what this meant was there was more of an active, ex-anti-screening role that the government played in determining which temporary workers and
generally which foreign-born workers would be able to come into the united states, giving the government more control in terms of limiting the access of mexican and other latin-american workers into the u.s. labor market. i'll also note that, of course, during this time we see the united farm workers coming out specifically, taking the position that undocumented workers should not be in the agricultural sector again, which set the relationship between undocumented workers, immigrant workers generally and the labor market for many years that would follow. so, what is the larger consequence of this today, of these historical developments? i always argue there's a few of them. one, of course, is that by not creating a permanent pathway for these hundreds of thousands of mexican workers, it's kind of labeled the mexican workforce at that time. arguably today with the type of permanent transients. the idea that they aren't able to be formally and permanently integrated into the u.s. labor market.
and some scholars have argued that in some respects the 1965 law replaced the asian immigrants with latino immigrants as the kind of outsiders. asian exclusion was in place during the national quota system up through 1965. that was eliminated and that was a good thing. there was then de facto exclusion of latin americans and concrete ating this permanent outside class that could be demonized and exploited. significant economic interdependency of the regions then the end of the basero program, the change in labor dissertation process which i alluded to. inevitable result is huge, vulnerable and exploitable undocumented population in the united states, which we continue to see today. now, what is the impact of this population?
of course, we see it as foreign-born workers in the u.s. labor department, disproportionate levels of wage theft. their experience with workplace injuries and fatalities are disproportionate to the representation in the u.s. labor market and the list goes on. so building on top of that, of course, is we then have a culture of immigration enforcement, which has fueled -- has been fueled by the growth of the undocumented population which, of course, is also affecting the experience of workers in the workplace. so i know i've been sounding like there's a lot of gloom and doom with the 1965 law. there are positive things. charles mentioned of the entire visa allocation of the 1965 law, 74% were allocated to family based immigrants. only 20% went to employment based.
some might say this was the root of the major structural problem in the u.s. immigration law. 20%. in 1965. yeah. so as of -- the way the visa allocations were laid out in that law, 10% went to members of the professions or workers with exceptional ability and another percent, 10% went to those who were performing skilled or unskilled labor. as an overall -- that's relatively low and the balance wasn't the right balance. and there's a larger critique around the u.s. immigration law and whether we're doing what we need to do to attract the best talent in the united states. we can have a conversation about that. there was an impact, right? we did see, despite that relatively small -- in the late '60s and early '70s and many of these immigrants from asia and elsewhere have made a significant impact on the economy. so we could say was this the right allocation?
that's a good question. you could also note the positive contributions. you could also note the particularly inclined nature of immigrants toward self employment and how that's affected u.s. business markets. on the flip side, you might -- we could reflect on how these employment-based categories have caused economic difficulties or brain drain in countries of origin. that's another aspect to look at. just two more points and then i'll wrap up. the first is the impact of the 1965 law on african-americans. this is something that gets relatively little attention but deserves more attention. the law was part of civil rights legislation. and we often talk about the impact on asian americans or latinos but it's reflecting what the law has meant for african-americans. of course, there's a very vigorous debate about whether or not immigrants and immigration
generally is positive or harmful for americans and whether there's a recent study put out two years ago which showed that, in fact, there's a positive impact. for example, those municipalities that attract immigrants tend to be more positive in terms of the economic impact overall, including african-americans on wages, income. there are, of course, other general studies that show that -- including epi that's done some great work around the wage impact of immigrants, showing there's a small, positive impact. at the same time we can look at particular industries where employers have intentionally chosen to replace traditionally vulnerable groups such as african-american workers or longstanding latino communities with guest workers, right? and that is purposefully in some instances because those guest workers are more exploitable and vulnerable. so i think that's something that is worthy of some more broader
consideration. i think it's also helpful to think about this in terms of broader frame of civil rights and equity. so when we look at the vulnerability of the latino immigrant community and the ways in which both the undocumented population and the corresponding enforcement efforts have affected latino communities, racial profiling and racial discrimination in some cases i think we have to ask ourselves what is the impact of that on other communities of color, right? is it nurturing a type of anti-minority attitude that is going to be harmful to african-americans? another way to look at it, we now have, of course, a large undocumented population, which has then spurred the growth of large enforcement apparatus. that reform apparatus and the enforcement has then forced some employers to move away from undocumented workers and rely more on guest workers or prison labor, for example.
right? or other types of workers who are more -- maybe lawfully working but more legally controlled. i think we need to think about perhaps an even subtle ways, the ways in which that type of series of events is now impacting the series of economic communities. and in some ways the indeterminancy of all of this. of course, we note there's been significant growth nun documented population, we look at family based. but the interplay between these things are complicated in immigration law. you have people who come in, as family-based immigrants but then, of course, make incredible economic impact. then you have people who come in
under the employment-based scheme as entrepreneurs but then they'll bring in family members. so it's difficult to cabin in a very isolated way the impact that workers have had. as we look forward, they still continue to be a significant deficit in pathways for temporary migration. that's a major flaw in the u.s. immigration system. there were some attempts to remedy that in 2013 but there still is a long way for us to go. >> it strikes me that in addition to this equity versus quality frame, one of the lessons of the '65 act has to do with supply and demand. that is to say pre'65, 90% of immigrants came from europe. post '65, it was reversed. the supply side, as it were, of how we changed our visa systems for that explanation. surely, that is at least
partially true. it strikes me that very few people talk about how much demand was there in a booming western european economy and also eastern europe which was largely behind the iron curtain that did not permit immigration. was this really a question of what we did on the supply side or is it is it more of a question of what happened with respect to demand for visas from other countries? at this point, i guess i'm curious about what the panelists might have thoughts about with respect to each other's presentations. without necessarily going in detail but -- or in order, let me start with rose, whether you have additional comments. >> well, i wanted to respond to
what jayesh said about the gloom and doom. it's true. we're here, being very critical of the act. but one of the things that we have yet to mention is how the 1965 act relates to the overall population today. and where we will be in 2043, at least as predicted by demographers. by 2043 the prediction is that the united states will no longer be a majority white population, country. if anything, it would be the opposite of that. and that is that there will not be a single, quote, race that would dominate the u.s. population. instead, different pockets of minority groups will then emerge as one of many different populations in the united states. and we can trace that demographic change to the 1965 act because of the migration, immigration of many immigrants
of color, particularly from mexico, china, india, philippines and the dominican republic. those are the top countries to date in the last several years. so, one way to examine those numbers is to think of it from the perspective of what were to happen if congress had never imposed any kind of racial restriction on immigration? will we be -- would we be in a different place today? and if so, how differently would our population look like? so one argument would be that the 1965 act can be thought of as sort of essentially erasing the effects, both intentional and the effects of those racial barriers to immigration law. so, just invoking from affirmative action theory it's a way to address the ongoing impacts of formal discrimination. so that's -- from one perspective, we can think of the
1965 act as a positive -- from a positive perspective. nondiscrimination and erasing the effects of discrimination. others may say it's a negative perspective and we don't want to promote diversity in that way. that it's one thing to think about allowing everyone to have equal access to the united states for purposes of immigration. but it's another to think about immigration law as a means for diversifying the immigrant's dream. so i wanted to put that in there as a way to also consider the role that the '65 act played in our population. >> i will say a couple of things. jayesh's point about taking us back to the brasero program is worth reemphasizing. directly preceding 1965 you had
a set form of cyclical migration between united states and mexico. there are certainly significant concerns with programs like the brasero program, choice of agency might have been coerced with regard to those workers. on the other hand it was a way of promoting a cyclical season, form of migration that in its time processed over 2 million immigrants in its 22 years of existence even in the last couple of years, processing over 200,000 mexican workers per year into the united states. to bring that to an abrupt close ten months after that program ends is going to have significant effects because people simply don't respond in that way when they have ties in the united states. employers don't respond that way
when they depend on that lib and become used to that labor in the united states. the other thing i'll say is i think it's interesting to think about what rose just mentioned, about the demographic changes in the united states in the coming years and very soon in the coming decades, significantly shifting what we think of as minority and majority populations -- i wonder. this is an open ended question. to what extent without significant federal immigration reform whether even as those demographic changes happen our concept of illegality necessarily changes. if we think about prior -- by the late 1800s, illegality, as charles pointed out, meant asian, this nefarious group of people from asia, coming to take jobs, apply opium in the united states and generally debosh the
morals of the united states through asian prostitution, for example. right? so 1975 -- 1875, the page act is really directed toward this problem of chinese prostitution coming into the united states and deboshing the morals of places like san francisco and its surrounding areas. i wonder even as now we don't necessarily -- although, for example, when you think about jeb bush's campaign rhetoric, he was saying i was thinking about birth tourism i wasn't talking about latinos. i was talking about asians. somehow that made it better in his mind. but as a general matter we have replaced that and the way in which we now think about the latino population is, in some sense, an immigration question even though that doesn't actually track with the demographics of that population. significant numbers of citizens with long histories in the
united states. but we label them as illegal. illegal operating, i think, as a very thin veneer for race and racial restrictions. open question as even our demography changes, to what extent does our legality change without significant changes at the federal level? >> last point is a very interesting question. just a couple of reflections. when we think about the demographic diversification of the u.s. -- and i definitely think about that as a positive. particular pathways in which asian immigrants have come to the united states post 1965 have certainly created some publications in terms of how the groups are racialized and how they're positioned in terms of the class position within the united states. i think this is something -- my father was a beneficiary of the 1965 immigration law, able to come to the united states because of that law.
he was able to come to the united states because of that law. as a consequence, many asian americans are then positioned as affluent, successful, high achieving, et cetera. and while that's certainly true for some portion of the population, i think it's then created a lack of a complex understanding of the real diversity, economic and otherwise within the asian american community. i think the same might be said about latinos and i think african immigration is such a phenomena. it doesn't come about as a result of the '65 law but the subsequent enactments. and the same might be said about -- i'm certainly not an expert on this but was thinking about the interrelationship between the african-american community and more recent waves
of african immigrants and more recent waves of opportunities and what that means, how do we define african-american in growing african immigration the in the united states, and historically present african-american community and african immigrants in terms of their access to different kinds of opportunities. it's a fascinating question that we can think about. theep's comments and others emphasize the complexity and interests that are at play in immigration reform. now when we look at it, sometimes it feels hopeless, right, to see all these different strands of interests that are trying to be aligned. but i think what the -- pratheepa and others emphasize is that it's always been this complicated. lots of interests have been at play in terms of crafting
immigration policy, certainly with respect to the workplace issues and there's been a particular uncertainty with how to deal with immigration from the western hemisphere. i was talking about -- and what others have talked about, it wasn't a done deal, right, from the beginning. it was something that was done as a result of tense negotiations in the months and years preceding -- that's where the negotiations landed. if you read the law, in addition to putting in the cap they called for a creation of select tradition on western hemisphere immigration. i think we still need that today, in light of what's happening in central america. just a deep uncertainty, fueled by racial concerns, economic concerns, about what to make of
this longstanding historical relationship between the united states and the rest of the hemisphere. i think that it's always been politicized, still extremely politicized but remains our greatest challenge. >> are there mainly retrospective, 50th anniversary of the major reform law, are there lessons we should take from that over the last 50 years and apply them today so for scholars, legislators, advocates? if we could maybe identify one thing we think is most meaningful from this history that is applicable to current contemporary debates? >> i would like to focus on family. who counts as family. in fact, the last -- the bill that passed the senate, the one that almost -- many had hoped to become law had different ways of
thinking of family base. they would have cut off the ability of u.s. -- the bill would have cut off the ability of u.s. citizens to petition for their parents, to petition some of their older children, who are married, if they reached 31 years old, then they will no longer be eligible for immigration to the united states. and on the other hand, that bill would have also allowed for permanent residents to bring in their spouses and children. so in terms of lessons in how the 1965 act, building upon the 1952 act, redefining the meaning of family, it's important for us to think about whether we might want to expand meaning of family. other countries allow for grandparents to immigrate, for
other close family members to immigrate. one thing would be to think about broadening the meaning of family or we might consider narrowing the meaning of family. limit it to spouses and children, young children defined by the statute as 21 years and below. so because the way that our family-based immigration program right now is structured leads to, on the one hand, lead to immigration but on the other hand extremely long delays and separation, then there's something wrong with the system. right? it's important to rethink how we define the family. >> one way of thinking about that question is what's the best immigration policy. in 2065, what would we say or look back and say? if we're going to do that, we have to ask what exactly is our goal? what are we trying to accomplish
with any form of immigration reform? you might ask the question from the labor perspective, our goal is to maximize the economic output of the united states to be functioning at an efficient level. perhaps that's one goal we might pursue in significant portions, constituencies with the united states are doing. want to pursue that goal. there's a significant portion of the united states that's committed to this goal of the purpose of immigration law should be not to have illegal immigration. and that's a more difficult and complex question to address. one way of addressing that would be to say if the law doesn't create illegality, you won't have illegal immigration or unauthorized immigration. if you start from that premise -- it's unclear which path you should take. we could simply match our immigration in the united states based on demand.
if availability matches demand it's likely you could get down to very -- at least a manageable number of unauthorized migrants. if what you take from the last 50 years is that we should have greater enforcement as a way of reducing that 11 million number then your immigration policy is going to look significantly different than it is today. it will require an enforcement apparatus that is exponentially bigger than what we have today. one of the lessons that perhaps we should take from the last 50 years is regularize or cyclical mass legalizations will not be a way of reducing the illegal population to zero. mass enforcement and ratcheting up of mass enforcement system also will not reduce that number to zero which leaves sort of this last choice of really thinking hard about how demand matches availability in some meaningful way.
again, what i would argue or what rose has pointed out one of the root concerns of the 1965 act. these are some questions we might want to think about, what's the goal? what are we trying to accomplish with this immigration law going forward? >> i'll be brief. i mentioned this earlier, and of course looking at these questions often from a labor or economic angle. and the historical record if my view is very clear is that historically since 1965, there simply have not been enough pathways for legal immigration into the united states, for people interested in coming for economic purposes, whether that's coming for unskilled work, semi-skilled work, high-skilled work or small-level entrepreneurship. there simply aren't enough visas available, whether you're talking about temporary visas or permanent visas, and i think
that's a fundamental flaw in the system and one that has created a range of pathologies leading to immigration enforcement, economic problems, kind of locally, and otherwise, and i think that's something that needs attention. and the 2013 bill in the senate went significant ways towards remedying that by creating a new, non-immigrant visa category that would allow larger numbers of temporary workers to come to the united states to work temporarily. they wouldn't have to be beholden to some specific employer, there was a visa portability which is another feature that needs to be introduced into the employment-based immigration system. so i think that's a tension that just needs to be worked out. it is complicated, because there are a lot of different imperatives when we're talking about foreign-born workers. we're talking about attracting
talent, boosting the economy but also protecting you as workers, right? and often these are at odds with one another, to be candid. so not always, but there are ways to reconcile these different interests, but that, i think, is the larger project that needs to be undertaken. >> thank you. let's, you all have anything else to add? you're free to jump in on. now is the time for audience q&a. we have a mic. please wait for the mic to get to you, and then please identify yourself before asking your question. >> yeah, thanks. so i know i've kind of been jumping out of my seat here. i'm peggy orchowski. and i've been covering immigration for the last ten year, and i just wrote a book called "the law that changed the face of america", and i'm just really pleased with this panel. because you talk about some of the stuff i struggled with. i'm glad that deep corrected you in that there wasn't a law in
1986, there were the states and localities. if you were jewish, forget about going to boston. there were a lot of ways cities and states regulated immigration, and i'm glad jay corrected you that mexicans were not included in the quota of 1920s, and i'm really glad you talked about family unification. i mean, i'm, i think what you haven't spoken about are the drivers of immigration and how they change, and how they change the demand. so, like, for instance, technology, you know with skype, do we really need family unification, you know, you can talk to your mother-in-law every day if you want. does, especially things like the nationality, you didn't talk about the 7% rule.
the thing was that in 1965 they, the 1964 law prohibited national origin as one of the civil rights. you cannot discriminate on national origin. every nationality had to be treated equally. and discrimination also means preference. it doesn't just mean discrimination against, it means preference for. you can say now we're not going to have preference for all northern europeans but we're going to prefer the mexicans. how do you do that, that every nationality is treated equally, so they put a 7%, that no nation can have more than 7% of the green cards put out today. that still exists today. so mexico doesn't get any more than 7%. if iceland doesn't use 7%, that number goes into the amount. but nowadays, in terms of globalization, and this is
getting to my question, because it's something i've been really struggling with, does it really matter anymore that we give a preference or not to national quota and globalization, we're seeing how high-tech workers, a lot of them are from a single country, china, india, you know, are we really going to say we're going to do the 7% rule on that? if we illegalize most of the legal, especially dreamers and the vast majority are mexican. doesn't that give a huge advantage to mexicans, come in illegally and get an amnesty? that's kind of preferring mexicans. is that civil rights? is the executive orders for daca going to go against the civil right of giving preference? is that important anymore? and the last thing that i've really been struggling with is, and you guys, this is the question you guys can really answer. immigration's not a civil right. but i think that the 1965 act and all the fervor about immigration and i used to see kennedy pounding the table and
saying immigration is the next civil right in our nation. and, and it isn't. so i'd love you to address that. >> i mean, there's a lot in that. i think honestly, your question boils down to immigration, go. no. so, but a few thoughts. so the questions of how we should think about things like dreamers, daca, dapa, the questions that are partly influenced, again, by 1965, because those questions may not come up at all if immigration law is fundamentally structured in a different way, but it also suggests, your question suggests that once you have, should we in a sense reward a tech population for, for, you know, legal transgressions of entering unlawfully or having been unlawfully present and does that
fit into a civil rights narrative, and i'm mott sure there's a great response to that except to say i think your perspective on that depends on how you view the law and illegality, if you think about illegality as something preordained, as there is this concept of illegality and once you cross that threshold there's no way of rectifying it except through violations of what we might fundamentally think of as rule of law, priorities and any quality norms, i'm not sure there's a lot that i can say here that's going to change your mind about that. but, if you think of, i think, if you think of that the creation of those populations, for example, a dreamer population as a result of a functional, this is how functionally law works on the ground when you have significantly harsher congressional penalties against the historical backdrop that jayesh beautifully laid out for
us, then it suggests that that transgression of unlawfulness or illegality is not the ending point of our discussion, that the real question, then, is how should we as a populace think about that population? how should we direct enforcement efforts toward that population? to what extent does it make sense to enforce law against that population, and if that's our starting point, then i think we have a very different orientation towards the rights and civil rights of those sorts of groups. i do think that one important lesson, going back to the question that charles asked about 1965 and rose's comments was that the 1965 immigration act occurred against this backdrop of significant civil rights advancement in the united states, including the civil rights act of 1964 and the voting rights act of 1965, ten years on the heels also, of brown versus board of education and equal protection
jurisprudence in american courts. what's the lesson we can draw from that? i think one lesson is that in our current push for comprehensive immigration reform should also take that frame of a civil rights, as a civil rights legislation. this is, i think, the civil rights project of our time and will continue to be, as long as we don't try, as long as we avoid addressing this problem of illicitness and illegality. >> just a word or two, just to build on that, and i think deep has really nicely framed this question of legality, which i think it really does shape how one looks at this. but and i think that really is the key frame that one has to grapple with, but in terms of, is it fair to call immigrants or immigration law as a civil rights issue?
i would argue that absolutely in light of kind of the types of mechanisms that have been deployed by the state against foreign-born persons, and there are very clear parallels between the experience of african-americans, latinos and other historically disadvantaged groups and the experience of foreign-born persons. now i'm not equating the experiences, nor am i saying the legal frameworks are equivalent. but if we look at practices like racial profiling or mass incarceration, the same experiences that african-americans and others had experienced are now being replicated in some respects on foreign-born persons, especially latinos. and that is more than just a rhetorical connection. there's some, a deeper connection in some ways that i think is worth exploring. so i think that's part of the what i think is fueling this, it's the next civil rights movement. [ inaudible ]
>> especially with millennials. >> can you wait for a mic please? >> i think we're changing the whole idea. racial profiling. not race, but they're so mixed now. i mean, the huge diversity of latinos, and i love the millennials. they're whatever, everything. peruvian, chinese, mormons, they're my best friends. how do you racially profile in this incredibly, this is the question in affirmative action people are talking about now, too. i'm not sure that dynamic of the '60s, i think in some ways we're more like the 1920s now than we are the 1960s with huge income inequality, the fear of war, fear of foreign invasion. tremendous difference in working conditions. and that was what drove a law
that people wanted more border control, not less. i think we're heading more for that in the public. that's what trump is touching on. there's not a big civil rights movement like in the '60s that's driving the more liberal. that's the way i've seen it. >> so i'm ross eisenbrekt. and i have a question, because i'm very confused about pre-'65, the ability or the status of people who came without authorization. i mean, people were deported, i know. and for all kinds of reasons. and it seems that being here without authorization would have been one of those reasons. and then i just want to make a comment about family and the, one of the new civil rights, which is, you know, how we treat lgbt people. you know, this law, i think,
allowed or required the exclusion of homosexuals. i'm not sure, but that was certainly what happened. and going forward, one would hope that that wouldn't be the case and that a new, a new way of looking at family, even in, for immigration purposes would take into account lgbt families. >> yes, so let me comment on that last point about the exclusion of gays and lesbians from immigration law, that's issue, 1965 kept that in place. in fact, the law built, classified people who are lgbt q as having some kind of a medical condition that then led to their bar from immigration law, and it was not until 1990 that congress lifted that exclusion. so it's still fairly recent in
our memory. now as far as the supreme court cases that evaluated doma, now lgbt families are able to bring in their family members here to the united states. so it is catching up. that part of our population is now able to take, have that benefit in immigration law. and so i, i, it's unclear to me right now, for purposes of family, what might be the, in terms of civil rights how we might be able to redefine family from a civil rights perspective, other than to think about the family structures that we currently have in place today, who are, with respect to deep, speaking of the 11 million undocumented immigrants. it's important to examine how are families on the ground, who do they count as people who are special to them? and should they benefit from comprehensive immigration reform
and the reformatting of our family-based immigration. >> anyone want to take the unauthorized, ross's first question about the status of unauthorized people prior to -- >> i mean, i'll take a shot, i think one perspective, it's a great question and an important thing to point out. certainly, you look at, obviously, even in the late 1800s, soon after the first provisions of the chinese exclusion act came as a default proposition. the people of asian descent deportable. when we get to the early 1900s, as you suggest, there was significant mass deportations in the united states. so it was not uncommon for example in late 1920s, early 1930s, los angeles, to see roundups of mexicans, put on trains back into mexico. and so that is certainly true and certainly did exist.
the enforcement at that time, though, at least my understanding was that one, it was haphazard. looked a lot like, if you look at the early 2000s workplace profile in the bush administration, high-profile when ice agents entered a meat packing plant, but in terms of actual effect on the broader population, obviously creates fear and chills certain sorts of behavior, but it was not a systemized form of enforcement, and very similarly, i would argue the 1930s roundups, one haphazard to non-systemized, but also the scale of who we're talking about as, as the unauthorized population, as the population that could be targeted and removed was simply not the scale that we have today, right? it was we don't think about it in that way, and there was still
fairly relatively open movement across the border. so, as an example. when the bracero program was operating in 1942, texas was essentially excluded as a state that could take braceros. because of the discrimination, and the government refused to allow texas to participate in the program. so texas then asked the border agents at the texas/mexico border to allow free migration of people outside the program into texas so that they could then use them as laborers, and that system continued for a significant amount of time, but we, and certainly, they were illegal or unauthorized in the way that we would think about them today, but not necessarily subject to the mass deportations or the idea of enforcement that we would understand today. so i think it's an excellent
point, but i still do think that 1965 really changes both the scope, volume and quality of the nature of illegality. the other thing i'd point out is that up until 1990 there were literally three crimes that could get you deported, that made one deportable from the united states, murder, rape, and i forget what the other one was, but 1990 was when the united states code starts to exponentially expand the number of crimes that can get you deported. by 1996, which is the law we have today, if you look at the part of the code that defines aggravated felonies, 101a143 of the ina now goes on for several pages, and these are embezzlement, fraud, just continues, drug offenses, all of them get counted. and so you fundamentally change the group against which that enforcement can be directed. >> so ross, let me just add one
other thing. and i think it really goes to rose's initial point on where you stand on these issues depends on the history your perspective is really shaped by history. so, from a sort of latino civil rights perspective, when asked about the unauthorized prior to 1965, one might answer, first, it wasn't a large-scale problem in part because we didn't enforce the law against europeans. so the vast majority of european immigrants who came legally came, the old phrase was, you came with a tag on. that is to say someone paid for your passage, usually an employer, through, from italy, say, to ellis island. that was actually technically illegal, because according to u.s. law at that time, we did not permit indentured servitude,
but some would argue even the majority of people who came through ellis came came technically illegally. second, until the, i believe it was until the 1952 act, there was an automatic statute of limitations. so that anybody who was, who came unauthorized, again, mainly european, automatically was able to legalize without any action as long as they evaded detection from the law, which, as deep has noted was not very significant. and third, to the extent there was major enforcement, it was through these repatriation campaigns, which i would argue were highly racialized. and there were not, there was not one of them. there were actually four of them, including so-called operation wetback in the 1950s, where millions of mexicans and other latin-americans were deported, largely without due
process, and that included, you know, millions, probably, of u.s. citizens as well. so when you ask who are the unauthorized and how did enforcement take place in those days, i don't think one can fairly answer that with a simple answer. it depended on who you were, where you came from, and, and, you know, how one might have come to the attention of the authorities. so, sorry for that speech, but i had to add that. next one? >> thank you. my name is bob remusson. i am a practicing immigration lawyer for the last 30 years or so. and what strikes me in some of the things you people have been saying is to remember that i think historically, both european immigration and also mexican immigration, people came
and went freely, and therefore, the concept of being here illegally wasn't as salient, because you came here, you worked for a while. maybe you worked for a year. maybe you worked for two years, maybe you worked for six months. you went back to your family with the money you had. and it is with the 1965 act that started that, and especially now, i see with the 1986 or 87 law that imposes draconian consequences on people who are here for a year without authorization, if they leave, they can't come back for ten years. that freezes everybody in place, make being the pool of unauthorized people greater and meaning you've got to bring your families with you, because you may never see them again because you can't get back home. so that, to me, seems to be in the realm of unintended consequences, and i wonder how lawmakers and policymakers can avoid -- maybe it's impossible -- this type of unintended consequence.
>> you started to take a shot at that earlier. >> sure. i think you're raising an important point around the narrative that we create around immigration and the presence of immigrants, and they're also associated, there's an assumption that people who come to the united states want to remain here permanently. that's simply not the case. before i began teaching i worked for a number of years working with day laborers. the commonality was i'm not trying to work here permanently, i want to work here for a couple years, make a bit of money and go back and build a really nice house for my family. and i think that to a larger extent, immigration laws have really failed, the kind of dichotomous approach, either you're not here at all, you're here forever. has really failed to capture that middle ground. there was a comment made earlier
on globalization. and what we're seeing is binational existences, dual national identities. and that's another feature we need to contemplate. people increasingly may want to have a binational existence where they'll have homes or connections in more than one country. certainly playing out with many people. dual citizenship is becoming increasingly common and flexible. so i absolutely do agree that in terms of our policy, it's structured in this very kind of black or white type of way. and we need to think creatively about how we can create these pathways, either for binational or semi-permanent come and go or expanding opportunities for temporary engagement in the u.s. >> other questions?
>> hi, i'm shaun o'neill. one of the things that we need to bring dignity and respect to these people. they're all people. and i think fairness is in there too. but, are we being fair to the american taxpayer when we're placing a $10 billion demands on our essential services, like health care, education, the penal system, fire and police? the taxpayer right now is be being treated unfairly. and they should be in the equation. >> there have been a series of national academy of sciences studies similar to the ones that
deep and jayesh may have mentioned that suggest that in sum and in total immigrants more than pay for themselves over the long term. now, with specific groups and specific services and particularly at the state-local level, since much of the taxes go to the government, the localities bear the burden of services, and especially when taking demographics into account, like young, younger immigrants, younger, poor immigrants, they will tend to consume more in services than they pay in taxes, but the same is actually true of any younger, poorer population, regardless of whether they're immigrants or not. so i don't -- i don't deny your point that there are larger ramifications from immigration
and that, you know, everyone affected, which is everyone, ought to have a seat at the table in discussing how to resolve it, but i would resist the notion that immigrants are a net negative economically or with respect to specific government services. >> if i could add to what charles is saying. charles had pointed out that it is possible that there might be some effects at the state and local level, and this actually goes to significant part of the empirical work, empirical research i conducted with my coauthor for our book, which is to ask the question when you look at the restrictionist laws that were emerging over the state and local level over the last 10, 15 years, talking about sb 1070.
on the basis that immigrants were consuming a significant amount, whether or not it was, it's true that at any given locality or jurisdiction, immigrants did consume a significant amount of tax money, what our empirical investigation revealed is that jurisdictions who tend to pass these restrictionist laws were not suffering from those social ills that they were arguing about in their law. so, while they would write, for example in the purpose statements of their law that they had suffered significant social service deficits and that immigrants were changing the way in which they were providing those services, as an empirical matter, at least in those jurisdictions that were proposing and passing these lays, systemically when you look across the united states, that was an unsupportable factual statement. there may have been jurisdictions in which that was true, but those were not the same jurisdictions that were passing restrictionist legislation.
when you look at california, california houses close to 3 million unlawfully-present persons. that is 1/3 what -- yeah, roughly a quarter to a third of the unlawful, total population. but california during this time was passing the most integrationist social services laws, including more currently, laws directed at the health care of undocumented immigrants, so there is -- i think there is a -- that very well might be those economic effects, but the interesting thing for me is that it doesn't actually show up in the policy proposals at those
ju jurisdictions. >> quick follow-up? >> quick follow-up. you've referenced the bracero program a few times, and it seems that's the model that seemed to have worked best. and i -- we could go back to something like that. and a lot of the discussions about civil rights and 7% from this country and 7% from that country. i mean, i've talked to people on the hill about immigration reform. and if you're on the left you want everybody to have full citizenship. and if you're on the right you want to enforce existing laws and deport people. and then there's a bunch of stuff in the middle, too. but we need a broad-based coalition to effect change. we're going to need the left, right, and middle to come together around something, and it should be something very practical and not something that is so burdensome that i'd be interested in your thoughts on that. >> sure, no. please. but i mean, your general point is very well taken, that there
needs to be -- there has to be some kind of political compromise. just one quick response to your earlier question. we need to contemplate the reality that there are a lot of mixed-status families in the united states. it's really difficult to segregate immigrants x or they take away x when in fact many families are comprised of people here legally and people who are not, so that muddies the waters. but, you know, of course, there's a really clear evidence around significant exploitation under the bracero program. it can be a model, but a temporary visa program that both enables employers to take advantage of foreign-born workers to avail themselves, rather, not take advantage of, that was my next point, to not exploit in a non-exploitive way. the h2b program, significant incentives for employer fraud
and exploitation. multiple studies have been done on this. so not that every employer is coming at it with ill intention, but structural it lends itself to that. the 2013 bill had a proposal, the w-visa program was okay. it was a decent compromise. we can criticize it and pick it apart, but i think as we move forward, that was a result of a lot of compromise. afl organized labor, the business community, chamber of commerce. ag secretary were all at the table. and they came up with that. so it can be done again. >> i'm sorry. we've come to the end of this session. i've gotten the high sign. thank you all for participating. thank the panelists for their extraordinary contributions not just at this panel but through their books. so please look for them. so thank you all for coming. [ applause ]
tsa administrator peter and other homeland security security officials testified at a hearing. the house rules committee considers hundreds of potential amendments to a bill related to a six-year highway and transit policy bill. watch this live tomorrow at 3:00 p.m. eastern. and now a panel on internet privacy from the congressional internet caucus. >> good afternoon. i'm with the internet education foundation. i want to welcome you to our briefing. an e -- this event is co-hosted by the
congressional internet caucus advisory committee in cooperation with the congressional internet caucus. we thank them for their support of educational events like this. just a little bit of housekeeping before we get started, the twitter hashtag for today's event is #eusafeharbor from you want to follow along. we also have a few upcoming events. on october 21st there will be a happy hour with the facebook team including a brief presentation on facebook as a platform for social good. on october 22nd, the annual app challenge will kick off. for more information on how to get your office involved, visit our website or talk to our executive director. i'll now turn it over to mary
ellen callahan, the chair of jenner & block's governance practice. she is the former chief privacy officer for the department of homeland security. >> thank you very much, rachel. thank you all and thanks for coming. we'll introduce our panelists. damien levy is the head of the trade section of the delegation of the european union to the united states. adam schlosser is director of the center for global regulatory cooperation international at the u.s. chamber of commerce. gayle slater is vice president, legal and regulatory policy the internet association. i want to thank them all for coming. first, let's talk about what are we talking about today. we're talking about all sorts of syncing, that doesn't sound very good. i'll do a little stage setting and ask my panelists to tell me whether or not i'm right and where we're going in the future.
the safe harbor decision that was decided by the european court of justice on october 6th, 2015 actually has its origins 20 years earlier. in 1995, the european union passed a data protection directive which has rules and regulations and general standards by which eu member states have to adhere to data protection for privacy regulation. there is a prohibition in the directive about allowing the cross border transfer of personal data, which is very broadly defined, and it pretty much is all electronic information. you cannot have cross border transfer unless the country to whom you're transferring the information has adequate privacy protections or alternatively there are some other sorts of protections. the united states has a sectoral approach to privacy and it is not considered to be adequate under the european regime. it wasn't in 1995 and to this day it is still not considered to have an adequate privacy regime such that wholesale data
transfer of personal data can take place. so what's a u.s. company to do? from 1998 to 2000, the u.s. department of commerce negotiated with the european commission and created something called the u.s.-eu safe harbor. the u.s.-eu safe harbor is a regime, and it basically follows the eu standards, the eu privacy principles, and if companies go and make a public proclamation, i, company, adhere to the u.s.-eu safe harbor, they're listed on the department of commerce's website, which i believe is currently disabled. but they go and make a promise and they say, i agree to adhere to these standards. the federal trade commission has the authority to investigate whether or not people have the ability to -- whether or not they are actually keeping that promise. you have to renew that promise every year in a public statement. and the list is about 4500 companies currently have safe
harbor -- currently had safe harbor regime. that safe harbor was considered to be an adequate legal process under the european commission. and there has been some questions, throughout from 2000 on, there had been a lot of questions, is safe harbor scuff, is public promise sufficient, shouldn't there be stronger eu guidance on this, the european union questions the federal enforcement of safe harbor and so on. by the way, the u.s.-eu safe harbor deal, there was no congressional approval over it. it was directly with the european commission, from a legislative perspective. in june of 2013, the
unauthorized disclosures that many people call snowden, after those disclosures an austrian law student went to the ireland data protection commissioner and said i think facebook is violating eu privacy law even though they're safe harbor certified, the irish official said i can't decide this. the commission determined that safe harbor as a vehicle was an adequate data transfer. the irish high court concurred with the irish data protection authority. it was appealed to the european court of justice. the european court of justice, first the advocate general came out with a decision late in september that said that based on the u.s.' systemic failures in privacy protection, and particularly pointing out the june 2013 disclosures associated with surveillance and wholesale collection of particularly european union citizen data based off of the reporting, that the advocate general recommended invalidating safe harbor. the european court of justice concurred and invalidated safe harbor as of october 6th. a long way to get there, but i
thought it would be helpful with some framing. so my question to you, damien, is what did the court decide on, and what's the scope of the european court of justice's decision? >> thank you very much for this great summary. the court of justice was actually asked by the high court in dublin -- actually it's the first level court that concurred with the dpa and the high court did not rule against but actually asked a question to the court of justice, asking whether or not we have this safe harbor decision of the commission of 2000. the irish data protection authority is telling mr. schrams that it doesn't have any duty to investigate this case. is that right under eu law, or is it the case that despite the decision of 2000 by the commission that rules on the
side or the data privacy principles are equivalent to the rules on the european side, despite this 2000 decision, is it the case that still national data protection authorities have a duty to investigate a claim by citizens. the reason why the court takes that decision is to say under eu law and under european charter for fundamental rights you need a right of redress. also the right to privacy and the protection of personal data is a fundamental right in the european charter and for national authorities also a duty to enforce compliance of that right, if you want. so by combining in the directive
with the charter, the court comes to that conclusion. to come to that conclusion, the court also says since mr. schram's case, the decision of 2000 is invalid, and the high court in dublin seems to go along with that decision. it's not -- i haven't read the irish court decision. i only read the european court of justice's decision. it's kind of interesting to see that the court says, yeah, indeed, that irish court says i seem to go along with mr. schram's things, therefore i need to investigate this issue of validity or invalidity of the safe harbor provision in the eu treaty, if you want, which is in a way equivalent to your constitution. and so the court looks at the safe harbor decision of 2000, article 1, article 3, and checks whether it considers that the
commission's decision remains valid under the law, given what has appeared since then, but also it looks at how the safe harbor arrangement is constructed. it's not a commitment by united states government. it's a system of self-certification by american companies. and the court says, well, that's okay. it's better that the laws protect the data of private individuals, but still it's okay. and then looks at how it's enforced, how it is organized and enforced. it comes to the conclusion, i don't need to go into the details now, that basically it's not a sufficient protection, and therefore the rights of the citizens, mr. schrams in particular, are not protected and therefore the commission decision is invalid. i'm doing a very short summary.
therefore, not only -- the answer to the irish court is, yes, you have to tell the irish data protection authority that you have to investigate this case between mr. schrams and facebook, but also its ruling beyond that, and this ruling is behinding for everybody within the european union, including the european commission and all the national data protection authorities. actually that decision of 2000 is not valid. >> so the decision that the safe harbor is not valid, amy, i have a question for you, do you think this is a decision that's related to surveillance and the unauthorized disclosures of 2013, or is it related to commercial data privacy decisions? >> thank you, mary ellen. so i think at its heart we have to say this is a surveillance decision. the impetus for the entire case are the 2013 revelations by edward snowden in the
"washington post" and "the guardian" about surveillance conducted under the fisa act and more specifically a program called prism. these revelations were what motivated max schrams to take this case, to ask for an investigation, to ask for the irish national authority to look into safe harbor. so everything that has come out of that initial decision has come out because of surveillance. and the european court of justice's opinion really spends a lot of time looking at surveillance and looking at what the u.s. allows and what standards the u.s. uses in order to judge what surveillance is necessary. so the rest of the world really uses international human rights standards to guide their surveillance programs. they say that surveillance is only appropriate if it is necessary and if it is proportionate. and that's the standard that the eu uses. it's the standard under the iccpr, the international covenant of civil and political rights, which is a treaty that the u.s. is a party to.
it's the standard actually that was kind of incorporated into safe harbor. there is a huge exception for national security in safe harbor. you can not comply with safe harbor protections for purposes of national security, but only if the surveillance is conducted in the name of national security and public safety is necessary. and so the u.s. really -- what the court of justice found is that the u.s. practices are not necessary and they do not ensure this very high level of protection, that protection is adequate for european data. now, all of that said, the "but" is coming. it's a surveillance decision, but safe harbor is about commercial data practices. it is primarily a commercial data mechanism. and if you read through the court of justice's decision, they actually spend a fair amount of time talking about the inadequacies of safe harbor, about the fact that it is a self-certified mechanism so that
there is no independent audits sayi to see if an intent is complying, there's not enough transparency or accountability. you have to look at the entirety of the decision and realize that anything that flows out of it also has to meet kind of these deficiencies that the court is identifying in the safe harbor mechanism also from a commercial perspective. so you really have to kind of dual consider, what do we need to do from a surveillance perspective to make sure the united states law and practice is in line with the international standards that the eu thinks it should be in line with, and also what do we have to do from a commercial privacy perspective to make sure that whatever new mechanism comes in, and we will certainly talk about new mechanisms in a bit, actually complies with what the court of justice thinks it should comply with. because now that the court of justice has said that national authorities have an ability to review decisions from the european commission, we can expect that any new mechanism can also go up to the court of justice.
and they are going to be able to look over this mechanism again. so you don't want another period of indecision following this where an inadequate mechanism could get struck down a couple of years from now. >> adam, i'll ask you the same question, is this a surveillance decision or commercial privacy decision? and regardless of the answer, if you could let our audience know why transborder data flows are so important and what's the impact of this decision. >> sure. first, i would like to add a point of clarification about the actual ruling by the court of justice. so in the ruling there was no examination of the commercial practices. it was an examination of the national security side, and it wasn't even based on an investigation. it was based on allegations and powerpoints and "guardian" articles. so it would be very helpful moving forward if the european court of justice, if the data collection authorities could conducted a thorough examination, examining the changes to the united states law made since 2013. the discussion in the ruling was based on practices as understood
when safe harbor was created. that also brings us to the point that the ruling is a process ruling. so the decision is based on the fact that when safe harbor was agreed upon, the commission, according to the court, didn't do a thorough investigation of the national security side of how the exception in the safe harbor would be used by the united states and what our practices were in the year 2000 when it was agreed upon. so while safe harbor was invalidated on process grounds, there is no examination yet on the commercial side. and in fact the united states department of commerce, ftc, and the commission have been undergoing a review and an enhancement of safe harbor for the past two years. so there are some changes in place. there was a report put out by the commission two years ago, and both sides of the atlantic have been working very hard to satisfy the conditions put forth in that report. to your question, whether there was a surveillance or commercial decision, it was a surveillance decision. i think that hopefully answers that.
the other piece is, on the commercial side, the united states is a really strong system of enforcement. if you violate your self-certification, the ftc will carry out an enforcement action. we have 20-year consent decrees. there's nothing like that anywhere else in the world. and the european commission, when they conduct adequacy determinations, often do not take the enforcement side into account. so while in the united states our commercial privacy practices aren't exactly in line with the european rules on paper, in words, in many areas we go above and beyond what the europeans do. in fact, some of the other governments that are deemed adequate include argentina. and i'm sure they have a robust system of enforcement in their own way, but i'm willing to bet in the united states we have stronger privacy practices in actual reality, how it works, in practice, not just on paper. but getting to your second question about why is this whole issue important, why are we here, why do we care?
data flows are not just social media. it's not just spam and advertising. it's the backbone of the global economy and the trans-atlantic economy. at the u.s. chamber, we represent the interest of over 3 million companies, every single sector, every single size. energy companies, manufacturing, consumer goods, hospitality, the internet side, every company you can think of relies on the internet today. if you're a global company, you need to be able to transfer data. so in the business to consumer area, something very tangible, very easy is credit cards. you travel around the world. you go to europe. you can use your credit card. data is transferred back to your bank, it says yes, you have money in your account. it goes to other companies to verify that yes, you're you, it isn't fraud, and the purchase is satisfied within mere seconds. on the business to business side, it's any multinational company that might have employees around the world. it's transferring that employee
data globe ally. it's keeping track of a global customer base. for an airplane manufacturing business, it's having data on their engines while the plane is in the sky being able to troubleshoot and fix problems on the fly, literally. so there is a variety of uses for cross border data flows. there's an unlimited amount of reasons why it is essential to the global economy. >> thank you very much. and we're going to get back to how the safe harbor decision is impacting companies a little bit later in the program. but first, adam raised the question, amy, about whether or not the decision accurately described the u.s. surveillance and national security procedures both in 2000, 2013, and today. could you tell us a little bit what your opinion is? >> sure. so there have been significant changes made in u.s. surveillance practices since 2013. and i think you have to start with recognizing that.
ear ear ear ear earlyer -- earlier this year, we passed the usa freedom act, and most of the other groups we work with were in support of it. it's the biggest restriction placed on the nsa and surveillance since the '70s. it was a huge win. one thing it didn't speak to was section 702 and other sections of the fisa amendment act, which is what this case was filed under. so it has small steps forward on transparency in regard to those surveillance authorities but it doesn't really change any of the practices or have any real substantive modifications of those surveillance authorities. so a big win, but it doesn't touch what we're talking about in this case. the question was, does the case accurately describe surveillance. so actually, the european court of justice decision didn't only mention prism once. what they do mention is discriminate type of surveillance that is happening in the u.s.
and so from a perspective that you're not looking at a specific program, you're looking at 702, you're looking at executive order 12333, yes, that is happening. would i say it was exactly technically proper in regard to section 702? there were some inaccuracies with regard to how surveillance was being conducted, but the overall general programs that are describing in the court order can happen, are happening, and it's because the united states doesn't recognize the rights of any people outside the united states. so indiscriminate surveillance that they key into, absolutely is going on. >> i may take a little bit of a moderator's liberties here, which is the points that amy is making is, executive order 12333, colloquially called 12 triple 3, makes a distinction between domestic intelligence and foreign intelligence. and that distinction is that there are different types and
more robust types of intelligence gathering that can take place outside the united states as well as against foreign citizens. the section 702 that amy is talking about from the fisa amendments act has that theme within it. section 702 does talk about foreign residents' controls. the privacy and civil liberties oversight board did a review of 702 as did the president civil liberties group. i point you to that for more detailed discussions of 702. gail, i want to ask you a question. damien did a great job of summarizing the decision and what it was talking about. as amy pointed out, it talks a lot about, perhaps not wholly adequately, but in amy's opinion, in broad strokes, consistent with u.s. surveillance activities. do you think that the court should have looked at eu surveillance and national security issues as well as a comparison? >> so thank you, and first of all, i want to thank -- >> is your mic on?
>> yes. >> cool. >> i want to thank you for having me here today. my name is gail slater. the light is on. >> go closer. >> can you hear me now? okay. so to reiterate, i wanted to say thanks to the internet caucus for having me here today. my name is gail slater. i'm from the internet association. so to add to your question, yes, i think absolutely is the short answer to your question. i can explain why i think the court should have looked at eu surveillance at the time of the opinion. and the cliche is people in glass houses shouldn't throw stones. so we've talked about this decision, the schrams decision.
and as i see it, it's based on various snapshots, okay? so one of the snapshots is u.s. surveillance in 2013 at the moment in time that the snowden revelations happened, okay? another snapshot is u.s. commercial privacy enforcement. i think, i think, at the moment in time when the first safe harbor was entered into in the year 2000, so that's the second snapshot. and then they didn't take a third snapshot. and that was a snapshot of eu surveillance through the member state intelligence agencies in 2013, also around the time of the snowden revelations. and so i think these three snapshots are important because they all go to this question of adequacy. the safe harbor foundation is a decision taken that the u.s. system of privacy was inadequate in the year 2000 versus the eu
system, okay? and then they made some incremental changes, agreed to make incremental changes to the u.s. privacy regime so that they could close the gap between the eu system and the u.s. system. so that was done back in the year 2000. and then the schrams decision comes along. and the court says that because of mass surveillance in the u.s. as revealed by edward snowden in 2013, the safe harbor was no longer invalid because of this inadequacy. you have to ask yourself, inadequate compared to what? the comparison here, if we're looking both at surveillance and commercial privacy, has to be to eu surveillance. we also know from edward snowden, also in 2013, that many eu member state intelligence agencies were engaged in mass surveillance of their own citizens at that time. and the list is pretty extensive. my computer just turned off, so
i'm going to have to log back in. so the list includes the germans, the french, the spanish, the swedish, and the british intelligence agencies. ironically, it did not include the irish intelligence agency. i'm from ireland so i can tell you with all candor, i'm not even sure there is an irish intelligence agency. this is significant because this is of course where the case originated from, the schrams case that went to the european court of justice. so what the snowden revelations with regard to the eu member states said was that there was extensive mass surveillance going on also in 2013 of internet traffic and phone traffic of eu citizens. and so what the "guardian" did was it revealed documents, particularly a document produced by gchq, which is the british intelligence agency, and essentially it was a scorecard
across the number of dimensions of their sister intelligence agencies. and just to give you some context here, in my experience, the british are never likely to give the french a compliment unless they really deserve it. and here's what gchq had to say about the french. they described the french agency as highly motivated, technically competent partner who have shown great willingness to engage on internet protocol issues and to cooperate and share with us. >> that means that france is sharing surveillance information with england. i just want to make sure i got that. >> both internet and telephony data. so i think this is important. i think it's also important that the second snapshot i talked about, which is surveillance in this country post-snowden revelations and the significant reforms that have been put in place since 2013, were not taken into account by the court.
again, this goes to this adequacy finding. and i think had the court taken into account both eu surveillance and u.s. reforms post-2013, and also the sort of market-based solution to surveillance, which is increased adoption of encryption technologies by internet association members, but also by other technology companies, the delta, the inadequacy delta, we'll call it, between the u.s. and the eu systems, would, i think, have declined significantly. would that have changed the court's opinion? i don't know the answer to that question. that's within crystal ball gazing. but i do think it's important to have this conversation, because i think it's important in terms of finding a solution to this issue, that governments see the reality on the ground in both regimes. and then the other snapshot, if i might, that the court didn't take, which i believe would also be significant, should be
significant in these future conversations and negotiations around safe harbor 2, is the increased and robust commercial privacy enforcement by the federal trade commission in this country. and i think when, mary ellen, you will testify to this, if you look back at the year 2000, the ftc was just really finding its legs in its privacy enforcement space. it's come on in leaps and bounds since then. i think we can say with confidence it's probably the leading privacy enforcement agency in the world, and it has a track record that's very significant, and it's really something that's left out of the this schrams opinion. >> sure, adam. and then damien wants to make a comment thereafter. >> just to underline what gail said, it's the national security practices on the eu, their federal level, but also their member state level. so there's two pieces.
and damien will explain in more detail i think in a second, but the member states have the competency for national security and law enforcement largely in the european union. so by saying we need to examine the european union practices, it's their federal level and also below that that's really important. one quick example of how that works in practice, last year the court of justice reached a decision on a data retention case, a di -- data retention directive. they said the rules written violate the fundamental right of privacy, much like the outcome of the safe harbor case. however, it is up to the member states to implement that decision. so there was no required way or set way on how the decision was followed. so some states got rid of their retention rules. some states such as france actually expanded it. so that's why it's really important to examine the practices as they stand today on the member state level, and just anecdotally, when we travel internationally, there's several countries where we actually have to get special phones because of security concerns.
one of them is france. so it's very interesting, the state of play today. >> damien, turning to you next. >> thank you. i think we are reading too much into the judgment. i think we need to step back and understand what rules the european court of justice has to follow in this procedure. it's a procedure in front of the national court in ireland, where the high court has the validity to rule on eu law here, the safe harbor decision of 2000. and it's only answering a question from the high court. and it's relying on the facts as explained or summarized in the high court decision. i would note that no americans took part in that judicial proceeding in ireland. facebook did not participate, nor anyone else. and so that's the reason why the court in luxembourg is relying on what it hears from the high court.
and it doesn't decide on other grounds. and i think fundamentally it's about judges in luxembourg seeing an austrian student who doesn't have the right of redress. he wants to have a court listening to his case, basically, and saying i think my rights are violated. and the decision of the irish data protection authority was in a way denying that right. so i think it's more than that, you know. >> we're going to talk about redress in a little bit. i have a follow-up question based off of gail's and adam's comment. this is for you, damien. as you pointed out, the european correlate of justice decided that individual member state dpas have the authority to investigate adequacy or whether or not there is sufficient protections in each of these scenarios. do those same member state data protection authorities have the oversight authority over member state surveillance and national security issues as, as adam
pointed out, national security is a member state competency or authority. so i was wondering, do the dpas have that authority in their own right vis-à-vis their own member states? >> it depends. in some countries it's the case. in some countries it's not. i have no doubt that all the dpas and government authorities in general will review their own laws and practices to make sure they are complying with the new judgment. >> and for the member states, and i think there are a handful of member states that do have oversight authority, dpas have oversight authority over national security. have there been enforcement actions in those scenarios, do you know? >> i don't know. you need to check country by country. i cannot answer that question. >> no, that's great. thank you. adam, damien was saying we were reading too much into the judgment. i guess my question is, regardless of what we're reading into the judgment, what is
happening on the ground? what are companies doing as a result of the judgment? could you tell us a little bit about that? >> sure. the companies that we work with, from a policy -- they have a legal department and a compliance department. it's their job to make sure that their company follows the law. so they have to read into the judgment and read the tea leaves about what's happening around the rest of europe, and the reaction to the judgment. so the first order of business is to just do a data mapping exercise. what type of data do we have that's being transmitted? what were the safe harbor agreements being used for? because many companies, if they're a large multinational, they have hundreds of vendors. a hotel company, for example, they have hotels in every single member state, often multiple ones. they have staff there. they have restaurant staff there. they have food that supplies the restaurant. they have reservation lists. so you're looking at hundreds of individual agreements for hundreds of different entities within the one company. so it's a very, very extensive
and time consuming process to figure out, okay, what are we using the safe harbor program for now, and then what can we use as a substitute. some of the suggestions are extremely complex and difficult. one suggestion was binding corporate rules. that could take over $1 million, over 18 months. that was over 18 months prior to the decision where there's going to be now hundreds of companies seeking approval for that. another mechanism that had been accepted previously was something called model contract clauses. these are, like it sounds, set clauses approved by data protection authorities that companies can use to prove they're in compliance with the law. one state said we don't think that's valid anymore. >> that's up to five now, five german state data protection authorities. the equivalent of our united states have said they're questioning whether any data transfer to the u.s. is sufficient in light of the decision from last week.
>> and without a thorough investigation, again. so that's something that would be helpful in providing some heft to a decision, whichever direction it goes in. if you're a company and you're hearing this, what do you do? you have customers that rely on you, you have employees that rely on you. the decision isn't just about u.s. companies. it's about companies and consumers and end users in europe, in the united states. and that is something important to consider, as we move forward on this issue. >> gail, how is this affecting transborder data flows right now? >> so again, short answer to that question is, we're still in the early stages. i think it's fair to say people, including yourself, are absorbing this opinion and cancelling clients as quickly as possible and steering them in the safest and right direction. in many cases that's the eu dpas who are known to have good processes in place with regard to reviewing and giving their approval to these binding
corporate rules. and also, as adam says, people are doing audits. so how is it affecting transborder data flows? i think it's a little bit too soon to say, but what we can say with certainty is there is great legal uncertainty. and we can also say this is impacting, we believe, small businesses, medium-sized businesses, more than large companies, which includes the large companies here would include members of the internet association. the larger companies could see the writing on the wall, and they were able to take steps and contingency plan for this outcome. so many of them already have in place binding corporate rules, and they've resorted to model contracts. they also have sophisticated lawyers and the resources to pay for these other instruments. the smaller companies, i think it's fair to say many of them are in a state of disarray and they don't have the resources to spend a million dollars and
invest 18 months of man hours in getting a binding corporate rule through a european dpa. i think we can say that much. and i think there are also, depending on business models, scenarios where there literally is no alternative to the safe harbor. and so that's not every data transfer, but one data transfer that we've heard about is, for example, there are not model clauses that apply to an eu-based processor of the data, transmitting to a non-eu based subprocessor. there's an example of a gap in the law there. i'm sure you're being asked about that scenario. what businesses are looking for is obviously legal certainty, they're looking for it quickly. they're turning to the european dpass, particularly to a group
called the article 9 trade association of european dpas.s, called the article 9 trade association of european dpas. they're looking for that group, they're looking -- turning to them for federal guidance, because right now we have a scenario where you could have 28 different interpretations depending on the dpas, then you have a plethora of german dpas at the local level interpreting the opinion in different ways, which would obviously splinter the european data flows. and before you even get to trans-atlantic data flows. so that's a concern. so companies are looking for joined-up guidance from all of the eu dpas through the article 29 working party. and they're looking for it in a timely way. >> speaking of timely, the article 29 working party that is meeting right now trying to figure out how to deal with this, what advice to give, are you going to have a de facto period of transition, are we going to have a gentlemen's
agreement, was another phrase i heard about doing the transition. as of the time of the start of this session the european working party had not come out with a guidance yet. they may while we're here. as gail said, that's the trait -- trade associations for the data protection authorities, in terms of giving guidance on what they think. second, the european commission has made some general statements in terms of looking at this and trying to figure out what to do. the secretary of commerce yesterday in a speech said that, you know, obviously not surprisingly, the secretary was disappointed with the decision and is looking to work with the commission to figure out whether safe harbor 2 can work. i guess my question to the panelists, and i'll start with you, amy, but i would love to hear from each of the panelists, is what can congress do? >> so one of the things congress should be looking at is the fact that it was mentioned that the uk -- that the eu data retention directive was also struck down recently. and in response to that, the uk passed another data retention law known as the data retention investigatory powers act, in order to fill that void.
recently that also was struck down. so they attempted to pass a law that would fill the void left by an eu court action and it immediately -- not immediately but very quickly got struck down. now they're back at the drawing board having to write another data retention provision that they think that they need in order to fill this void again. what i think the u.s. should be trying to avoid is being in that same situation, where we take action and then are told that that action was similarly not sufficient, and that we have to go back again. so we should be -- the u.s. congress should be looking at what it can do now. i know yesterday several members of congress, both the house and the senate, sent a letter to the ftc and the department of commerce asking for them to enter into a new safe harbor very quickly. i think that may be the wrong path to take, because until the u.s. congress passes comprehensive surveillance reform, you can count on the eu court of justice saying that nothing is going to be adequate enough. and so when usa freedom act did
pass earlier this year, many members of congress thought it was done with surveillance reform. members of the civil society community were looking ahead to december 2017 when the fisa amendment act is set to sunset, saying you're not going to be done, but we don't know if we can weasel in more surveillance reform until the sunset two years from now. i think we shouldn't wait those two years. we should be engaging substantively right now and trying to figure out what limitations and protections we can put into place for that authority as well, trying to make sure, again, that we are complying with international standards, that every other country that is a signatory to the iccpr complies with in regards to necessity and proportionality of surveillance. and then the final thing that we should be looking at is trying to -- and again, i think there is some necessity in reading the tea leaves here about what the
court rwas saying on the commercial aspect of safe harbor and looking toward potentially a comprehensive privacy law in the united states, something that many civil society groups have been pushing for for a very long ti time, and trying to put into place protections so that the next time the court of justice revisits this opinion they don't strike it down under the consumer protection elements as well. so congress does have a huge role to play here, i think. >> i'm going to turn to adam and gail to see if they have any thoughts. damien, i figured you don't want to give guidance to the u.s. congress, so i'll give you a pass on that one. adam or gail, are there thoughts about how congress can help, given this audience today? >> i'll just go back and respond to amy's position on this by saying, i do feel strongly that regardless of -- and damien says the ecj looked at what it had in front of it, and these are -- i was just saying that damien had
pointed out that in the case before the ecj, there was an extensive factfinding and discovery done, and so that's why they were looking at what i've called these three snapshots. and i believe all three were inaccurate. but i think that it's very, very important, regardless of what the ecj has done and the court has spoken, that in political conversations and negotiations going forward, we do keep going back to this inadequacy delta and these inaccurate snapshots, because i think what amy has mapped out is a very tall order for any congress, and i also don't know if it's exactly what is needed, when you look at the state of surveillance in the eu, when you look at the robust enforcement by the ftc, and when you look at the not insignificant surveillance reforms since 2013. one thing we do know for sure, because damien and his colleagues at the eu delegation
have said this to us many times is that congress can pass the judicial redress act. i understand that's going to go to the floor of the house soon? yes. that would be a significant step forward. what it would do is extend to eu citizens the rights enjoyed by u.s. citizens under the privacy act of 1974, and that is a significant step forward, as we understand it from the ec commission, but also from the dpas themselves, and a step forward in the right direction. adam? >> the chamber, the internet association, several other associations around town, and companies, all signed a letter recently supporting the judicial redress act and calling for it to come to vote soon. and one piece, as i see it reported in the press all the time, it's not just tech companies, not just the technology coalition. it's again all businesses, a broad spectrum of businesses. if we had a bit more time, if there was more time to have others sign the letter, i know there's plenty of other companies that would have joined on as well.
it's a big base of companies and associations that support that act. that's one thing we can do to help answer the concerns of the europeans. when it comes to any other changes in congress, domestic reforms, there are things we should do for americans, for ourselves, not just for the europeans. if it makes sense to look at a privacy bill that has the right balance between innovation and previous, that's something we should do for americans, not just europeans. i think the immediate step, to answer the court's case, the court's ruling, would be the judicial redress act. anything beyond that is for the united states and that would be proportional, whatever that might be. >> great, thank you. both gail and adam mentioned the judicial redress act and as gail pointed out the act would provide all citizens the right to redress in terms under the 1974 privacy act.
the 1974 privacy act is near and dear to my heart when i was at homeland security. i had to enforce it. and what it was was it is about the government's collection and use of personal information. that you have to say what you do, have a record retention policy and have the ability to provide redress to u.s. citizens and legal permanent residents. why was that carved out? it's a question that my colleagues and i asked all the time and it could be that we didn't have this transborder data flow that gail and adam have spoken so passionately about. it could be that they didn't want to have redress rights for people who were asking for visas to come to the u.s. it could be a bunch of different things and when you're thinking about filing cabinets it's different when you think about the internet and the internet of things. so the judicial redress act as proposed and as gail said is moving through the house would give redress rights to european citizens and basically to foreign entities as long as they, too, had adequate protections.
so damien, i've got a question for you, which is given the judicial redress act as gail and i have described it only addresses government use of personal information, and even in the privacy act of current construct there's an exception for national security, does if judicial redress act solve this problem? >> well, i think we all agree that the current situation where we are in is a situation of severe legal uncertainty. it would be a big step forward to reducing legal uncertainty. so from a european perspective, we've been saying this for two years officially -- >> damien, you've been saying this for six years since i was negotiating with the european commission. >> so i think would be very important to take this decision but broadly i just wanted to intervene and say what the government is doing on the
european side or what the commission is doing. first of all, the system is so that it's for national authorities to enforce the directive and they meet, it's not a trade association, it's actually a group of government officials representing sovereign states, small difference. and the european commission is there also to help them come to a single point of view, that's what they've been doing last week, yesterday and today and everybody realizes that we need to give guidance to companies but also reassure citizens on what's going on with data so that is the number one priority but it may take a while. i think people need to be a bit patient. and also don't forget that three years ago we proposed to fundamentally overall our whole regime to have much better regime with less divergencies of application, that would be a single rule book. and so we really hope that council and parliament or our legislators will adopt these rules as soon as possible. thank you.
>> amy, do you think the judicial redress act solves this problem? >> we absolutely support it, but i -- it's an incremental step forward and i want to be very clear. it's a small step forward. it does give -- and not eu citizens, it gives certain countries who are certified by u.s. authority, so those countries are not named, it's not necessarily countries in the eu or only countries in the eu, certain rights under the privacy act. but again, as mary ellen pointed out, there are huge exceptions to it. and many of the programs that we're talking about here aren't going to be covered by judicial redress. i would add that at least in the senate, it has been proposed as an amendment to the cyber security information sharing act which many civil society groups, both in the u.s. and abroad, have outright opposed because it creates huge new surveillance loopholes for more personal information to go to the government. which i think actually runs directly contrary to the quarter
opinion we're looking at now. attaching a law that gives a small incremental step forward in the name of rights to a bill that actually takes a huge step backward is a net loss. >> adam, i was wondering if you thought -- damian's been focusing on this redress issue. it is something i heard when i was talking to the europeans when i was at homeland security. is redress the panacea for these transporter data flows from your perspective on the commercial side? >> so as everyone said, a step in the right direction. but at this point, it's unclear what a panacea would look like to the european side. again, it would be extremely helpful if there was some sort of self-examination done to see where the current rights -- not just on paper but in practice -- at the european level, at the member state level. because the united states should provide or should only be asked to provide equivalent rights to those of the europeans. we shouldn't be asked to go above and beyond what is
actually the practice on the ground over there. and just real quick, on the cyber information sharing act, something that we support, we think it's very useful in helping deter bad actors. we don't see it as -- or the act is not a loophole for more surveillance, it's the case where businesses and other entities can share information with those who deter the bad actors. it's not intended to provide access to more information but to instead stop. so if there is a breach in one area, companies and those in charge of information security can work together to stop the same breach from happening again. >> so i'm going to ask the panel to kind of look in their crystal ball, do a little gazing, and talk about what's next for safe harborist itself. there's this safe harbor 2.0 that's being negotiated between the department of commerce and european commission. is that dead on arrival? does that have new life? what do we think is going to go on with that?
what about the u.s./eu relationship? where are we thinking we're going with this? and i'd ask you to think both short-term, what's going to happen as we all kind of work out this legal uncertainty i think was damian's phrase, and then secondly, kind of a medium-term, what do we think the relationship should trend towards in the future? and i think i'll start with amy closest to me and then work down the line, please. >> so again, i don't know if any new mechanism is going to work in lieu of comprehensive surveillance reform. i just don't know if we can find a mechanism that complies with this court's opinion in lieu of changing the standard under which the united states conducts surveillance. and i absolutely agree with gail, there's a problem with surveillance in the eu, there's a problem with surveillance around the world. there's just a problem with surveillance. every country tries to give as much authority as they possibly can in order to conduct it. we need to start looking seriously and holistically at all these countries' practices
and pulling it back. right now we need to look at the united states' practices because that's what's standing in the way of a new mechanism. access has supported the model contract clauses that were mentioned earlier. but we call it model contract causes plus because we think that they also need to include more robust mechanisms for transparency and for data security in order to protect against unauthorized access to data. such as what's happening, for example, when the nsa was tapping into the backbone between google or yahoo! data centers. we think that's not necessarily a good thing for surveillance agencies to be doing. so we think that data needs to be protected a little bit more robustly. so we're looking forward to engaging more thoroughly, at least in the short-term, on that as a new mechanism. then looking longer term at how to engage on protecting privacy from a very holistic point of view. >> just a question -- just i think a point. the model contracts as currently proposed by the commission can't be edited so i think amy's
comments about model contracts plus would have to get folded into any sort of revisions on the european commission side. and it is a pretty frustrating contract, if i can have a little discretion to say that. it's very rigid in terms of the opportunities. gail, what do you think next for safe harbor and for this transatlantic relationship? >> so -- first of all, i have to say, just for the record, that the internet association supports surveillance reform. but we're also aware that, you know, congress has a lot on its plate. and so we have to be realistic in this context. the other thing i'd say about the relationship with the eu, so i think -- i don't know, some elder statesman used to say, the problem with the eu is that there's no one phone line. who are you going to pick up the phone to, to talk to the eu? in this scenario we have many different stakeholders within the eu. i think, you know in talking to the commission, damian's representing the commission, he can speak for them. i think there's a sense in which the commission wants to do the right thing here.
their decision was invalidated. they have egg on their face and they want to try and turn this around. they have been negotiating in good faith with the commerce department here. they were close to signing safe harbor, safer harbor 2.0. let's hope that comes to pass soon. but i know that people within the commission first have to look at this opinion and take a close look at it and decide what the new parameters they are operating under are. but we also have a parliament that's very vocal depending on where you go in the eu parliament on this issue. that's a constraint on the commission. the commission has to be mindful of the parliament. then we have the dpas of which we now know there are 28 plus 15 in germany. and so they're all going to have to want to say something about the safer harbor 2.0. and that's -- these are all checks and balances that the commission has to be mindful of going forward. so that's the eu. that's a lot of different stakeholders in place. i don't pretend to speak for any
of them but they are all important voices. so look -- in the meantime, i've said it already, i can't say it often enough, we're looking to the eu dpas, working through their trade association, the article 29 working party, to issue guidance that's helpful to businesses. and businesses who signed up for the safe harbor, there are 4,500 of them, did so in good faith. they complied with safe harbor for the most part. if they didn't the ftc went after them. there was backstop enforcement. and so nethey're now looking at this legal vacuum where they really don't feel they did anything wrong. perhaps the government did but they need guidance. >> adam, what do you think? what's next? >> so the relationship between the united states and the european union is too important. we transfer 15 terra bytes of information a second. it's a gigantic number. we have literally trillions of investment flows going back and forth. and the safe harbor decision goes beyond just the one program. if we can't share information,
if we can't carry on and monitor our investments, that is a gigantic loss, not just transatlanticly, but around the globe. to paraphrase vice president joe biden, it's a bfd, this whole thing -- >> what does that spell, adam? >> big friendly discussion. so it's really important that the governments on both sides of the atlantic get together and work on finding a solution quickly. not delaying so there's so much uncertainty. we need to preserve the relationship going forward. and what we need is responsible governments having a conversation to build connections. not to tear them down. the senate commerce committee sent a letter urging quick action. i'd like to see more in the congress getting involved, talking to counterparts on the other side of the atlantic. just overall really encouraging a swift resolution to the issue at hand. >> great. thank you.
damian, what do you think is next? >> well, what's next, i hope the act is passed. and together we're working on new safe harbor arrangements. taking into account what the court has said. and nobody has an interest in having a new safe harbor 2.0 in a couple of months' time. so we need to take a deep breath and make sure that a new arrangement is as solid as we can. thank you. >> great. with that said, we're at the top of the hour. i want to thank my panelists for an excellent discussion. i want to thank all of you. thanks, have a good night, bye.
next on c-span3, landmark cases followed by two partnnels from the technology policy institute and the senate armed services hearing on defense strategy. all persons having business before the honorable the supreme court of the united states are admonished to draw near and give their attention. >> "landmark cases." c-span's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759. earnest miranda, petitioner, versus arizona. >> arguments number 18