THE TRANSATLANTIC MAGAZINE
As the IRS released its latest list of individuals who have renounced their US Citizenship, a UK based lawyer campaigning against FATCA regulations in the UK and the EU has criticized the US for naming and shaming expats.
Filippo Noseda, a partner at Mishcon de Reya, has been a prominent critic of FATCA and its privacy implications in Europe, after taking on the case of a US born UK Citizen named Jenny. The case has highlighted a number of problems with FATCA reporting, not just in terms of its direct impact on overseas Americans, but also the security of the data which is being reported.
Now, Mr Noseda has criticized the IRS for regularly reporting the details of those who have renounced their citizenship, describing the process as a "data protection abuse".
In a letter to EU bodies, as well as the UK's Information Commissioner's Office, Mr Noseda explained that "ever since 1996, the IRS has been publishing the names of any individual who relinquished their US citizenship on a quarterly basis under section 6039G of the US Internal Revenue Code ... over the years tens of thousands of individuals have been subject to this treatment." Highlighting the most recent publications, Mr Noseda says that "The list published on 8 May 2020 contains 2907 names and according [to] the IRS's website it was accessed 4,035 times. The latest list was published on the IRS's website yesterday, 6 August 2020, again listing thousands of names."
Mr Noseda continues, arguing that the practice of publishing such information is another example "of the lower level of data protection that exists in the US, which was at the heart of the CJEU's judgment in Schrems 2" (click here for more information on the Schrems 2 ruling).
In criticizing the practice of "naming and shaming" those who have relinquished their US Citizenship, Mr Noseda encourages the EU Data Protection Board to "intervene directly in the data protection debate concerning FATCA". He also requests that the UK's Information Commissioner's Office "reconsider" its previous ruling that FATCA does not does not breach European data privacy rules.
On Mischon de Reya's website, where Mr Noseda's complete correspondence with the EU on the issue of FATCA is available, the letter is described as showing that the IRS' "public 'Name & Shame' list of expatriating individuals ... violates most basic data protection principles under the GDPR and the EU Charter of Fundamental Rights and exposes the European Commission's disingenuous approach to FATCA."
Letters and other materials relating to the case against FATCA in the EU can be found on the Mishcon de Reya website, at https://www.mishcon.com/news/correspondence.