Bridging the transatlantic divide?: The United States, the European Union, and the protection of privacy across borders

David Cole; Federico Fabbrini

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Bridging the transatlantic divide?: The United States, the European Union, and the protection of privacy across borders

David Cole ; Federico Fabbrini ^[1]
1. [1] University of Copenhagen
  
  University of Copenhagen
  
  Dinamarca
Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 14, Nº. 1, 2016, págs. 220-237
Idioma: inglés
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Resumen
- Revelations of mass surveillance by the US National Security Agency have produced widespread protest, notably in the EU, and have supposedly deepened the transatlantic divide between the US and the EU on matters of privacy and national security. The aim of this article is to qualify this understanding. While there are substantial differences between the US and the EU with respect to data protection from private actors, the differences are far less stark when it comes to restrictions on state surveillance for national security purposes. In particular, in both regimes privacy protections apply mainly territorially, to the benefit of citizen residents, while few if any legal limits constrain the capacity of intelligence agencies to conduct surveillance of non-citizens outside their borders. As a result, EU citizens are vulnerable to US surveillance, and US citizens are vulnerable to surveillance by European states. In the absence of transformation of domestic law, we maintain that a transatlantic agreement is necessary if privacy is to be safeguarded effectively. We identify several strong legal and policy arguments why the EU and the US should adopt a transnational compact restricting the powers of their own intelligence agencies to spy on each other’s citizens. While there are undoubtedly concerns about what the content of such an agreement might look like, any degree of transnational protection would be an improvement over the current state of affairs. The capacity of nations to engage in dragnet surveillance has gone global, and unless law catches up, privacy rights will be left behind.