Foreign Nationals and Privacy Protection: A Comparative Transatlantic Analysis

Data Protection 2014: How to Restore Trust 213-224 (Hielke Hijmans and Herke Kranenbourg eds.) (intersentia 2014)

17 Pages Posted: 8 Sep 2013 Last revised: 10 Oct 2014

See all articles by Christopher Kuner

Christopher Kuner

Vrije Universiteit Brussel (VUB) - Law, Science, Technology & Society Research Group; Maastricht University - Faculty of Law; University of Copenhagen - Faculty of Law; Centre for European Legal Studies

Date Written: September 1, 2013

Abstract

Since the Internet has made it easier for governmental authorities in one State to access data of individuals who are citizens of another State, questions about whether the same privacy protections should apply to citizens and aliens are occurring with increasing frequency. This is evidenced by the controversy that erupted in the summer of 2013 regarding access to electronic communications data by intelligence agencies on both sides of the Atlantic. The law of the European Union and the United States demonstrate some important differences in the privacy protection they grant to non-citizens, though both of them tend to prioritize the protection of the privacy rights of citizens. As data processing becomes increasingly globalized, it is not justifiable to base privacy protection solely on an individual’s nationality. For the US, this means that constitutional protections should extend to governmental actions that affect the personal data of non-citizens, and that statutory gaps in protection that discriminate against foreigners should be closed. For the EU, it means that legislation at the national level should not undermine respect for the universality of data protection as contained in fundamental rights law. Legal protection for privacy should be based as much as possible on universal values; removing limits on privacy protection based on nationality would be an important step towards achieving this aim.

Suggested Citation

Kuner, Christopher, Foreign Nationals and Privacy Protection: A Comparative Transatlantic Analysis (September 1, 2013). Data Protection 2014: How to Restore Trust 213-224 (Hielke Hijmans and Herke Kranenbourg eds.) (intersentia 2014). Available at SSRN: https://ssrn.com/abstract=2311976 or http://dx.doi.org/10.2139/ssrn.2311976

Christopher Kuner (Contact Author)

Vrije Universiteit Brussel (VUB) - Law, Science, Technology & Society Research Group ( email )

Pleinlaan 2
Brussels, 1050
Belgium

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

Centre for European Legal Studies ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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