ARTICLE 29 DATA PROTECTION WORKING PARTY

3.2 GUARANTEE A – PROCESSING SHOULD BE IN ACCORDANCE WITH THE LAW AND BASED ON
CLEAR, PRECISE AND ACCESSIBLE RULES 34
3.2.1 EXECUTIVE ORDER 12333 AND PRESIDENTIAL POLICY DIRECTIVE 28 35
3.2.2 FOREIGN INTELLIGENCE SURVEILLANCE ACT 36
3.2.3 CONCLUSION 37
3.3 GUARANTEE B – NECESSITY AND PROPORTIONALITY WITH REGARD TO THE LEGITIMATE
OBJECTIVES PURSUED NEED TO BE DEMONSTRATED 37
3.3.1 PRESIDENTIAL POLICY DIRECTIVE 28 37
3.3.2 FOREIGN INTELLIGENCE SURVEILLANCE ACT 38
3.3.3 CONCLUSION 40
3.4 GUARANTEE C - AN INDEPENDENT OVERSIGHT MECHANISM SHOULD EXIST 40
3.4.1 INTERNAL OVERSIGHT 40
3.4.2 EXTERNAL OVERSIGHT 41
3.4.3 CONCLUSION 42
3.5 GUARANTEE D - EFFECTIVE REMEDIES NEED TO BE AVAILABLE TO THE INDIVIDUAL 43
3.5.1 JUDICIAL REMEDIES 43
3.5.1.1 STANDING REQUIREMENT 43
3.5.1.2 PRESIDENTIAL POLICY DIRECTIVE 28 44
3.5.1.3 FOREIGN INTELLIGENCE SURVEILLANCE ACT 44
3.5.2 ADMINISTRATIVE REMEDIES 44
3.5.2.1 INSPECTORS-GENERAL 44
3.5.2.2 FREEDOM OF INFORMATION ACT 44
3.5.3 PRIVACY SHIELD OMBUDSPERSON 45
3.5.3.1 ESTABLISHMENT OF AN OMBUDSPERSON 45
3.5.3.2 THE ASSESSMENT OF THE NEW OMBUDSPERSON MECHANISM 46
3.5.3.3 CAN THE ESTABLISHMENT OF AN OMBUDSPERSON PER SE BE SUFFICIENT? 46
3.5.3.4 THE SCOPE OF APPLICATION OF THE OMBUDSPERSON MECHANISM 47
3.5.3.5 ‘STANDING’ AND THE PROCEDURE OF THE REQUEST 48
3.5.3.6 INDEPENDENCE 49
3.5.3.7 INVESTIGATORY POWERS 50
3.5.3.8 REMEDIAL POWERS 50
3.5.4 IN CONCLUSION 51
3.6 CONCLUDING REMARKS ON SAFEGUARDS AND LIMITATIONS APPLICABLE TO U.S. NATIONAL
SECURITY AUTHORITIES 51
4. ASSESSMENT OF THE LAW ENFORCEMENT GUARANTEES OF THE PRIVACY
SHIELD 52
4.1 INTRODUCTION 52
4.2 APPLICATION OF THE EUROPEAN ESSENTIAL GUARANTEES TO ACCESS BY LAW
ENFORCEMENT AUTHORITIES TO DATA HELD BY CORPORATIONS 53
4.2.1 ACCESS BY LAW ENFORCEMENT AUTHORITIES TO PERSONAL DATA SHOULD BE IN
ACCORDANCE WITH THE LAW AND BASED ON CLEAR, PRECISE AND ACCESSIBLE RULES 53
4.2.2 NECESSITY AND PROPORTIONALITY WITH REGARD TO THE LEGITIMATE OBJECTIVES
PURSUED NEED TO BE DEMONSTRATED 53
4.2.3 AN INDEPENDENT OVERSIGHT MECHANISM SHOULD EXIST 55
4.2.4 EFFECTIVE REMEDIES NEED TO BE AVAILABLE TO THE INDIVIDUAL 55
4.3 CONCLUDING REMARKS 56
5. CONCLUSIONS AND RECOMMENDATIONS 57
5.1 THREE POINTS OF CONCERN 57
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