Peter Swire and Kenneth Propp suggest a viable post-Schrems II alternative to address U.S. judicial redress deficiencies in the Lawfare Blog.
“Any future attempt by the United States to successfully address this perceived deficiency in judicial redress … must have two dimensions: a credible fact-finding inquiry into classified surveillance activities in order to ensure protection of the individual’s rights, and the possibility of appeal to an independent judicial body that can remedy any violation of rights should it occur.
We suggest that the obvious and appropriate path for an appeal from the fact-finding stage would be to the Foreign Intelligence Surveillance Court (FISC)
For redress, two options are: (i) utilizing the existing Privacy and Civil Liberties Officers (PCLOs) within the intelligence community, and (ii) enlist the Privacy and Civil Liberties Oversight Board.
A key legal issue in crafting such a system is ensuring that a plaintiff has “standing” to sue, as required by Article III of the U.S. Constitution. A solution might be a Freedom of Information Act (FOIA)-like mechanism where any individual can request documents from an agency, without the need to first demonstrate particular injury.”