Bridging the Transatlantic Divide? The United States, the European Union, and the Protection of Privacy Across Borders

Forthcoming in International Journal of Constitutional Law

iCourts Working Paper Series No. 33

19 Pages Posted: 10 Sep 2015 Last revised: 20 Nov 2015

See all articles by David Cole

David Cole

Georgetown University Law Center

Federico Fabbrini

Dublin City University - School of Law and Government

Date Written: September 8, 2015

Abstract

The revelations of widespread surveillance by the US National Security Agency has produced outrage, notably in the EU and supposedly deepened the transatlantic cleavage in matters of privacy and national security. The aim of this paper is to qualify this understanding. As we maintain, both the US and the EU regimes of data protection present strengths. Yet, both of them reveal also weaknesses in the field of national security. In particular, in both regimes privacy protections apply mainly territorially, to the benefit of residents – but few if any legal limits constrain the capacity of intelligence agencies to conduct surveillance overseas, against non-citizens. While the discrimination between citizens and aliens is a constant in the fight against terrorism, we claim that in the context of transatlantic relations there are strong legal and policy arguments why the EU and the US should set up a transnational compact restricting the powers of their own intelligence agencies to spy on each other’s citizens. The struggle against terrorism has turned global. The adoption of a transatlantic privacy agreement may represent the mechanism to secure the protection of constitutional values against circumvention by intelligence agencies cooperating across borders.

“[T]he legal safeguards that restrict surveillance against U.S. persons without a warrant do not apply to foreign persons overseas. This is not unique to America; few, if any, spy agencies around the world constrain their activities beyond their own borders.” Barack Obama, speech, 17 January 2014.

Keywords: Surveillance, privacy, EU, US, transatlantic compact

Suggested Citation

Cole, David D. and Fabbrini, Federico, Bridging the Transatlantic Divide? The United States, the European Union, and the Protection of Privacy Across Borders (September 8, 2015). Forthcoming in International Journal of Constitutional Law; iCourts Working Paper Series No. 33. Available at SSRN: https://ssrn.com/abstract=2657514 or http://dx.doi.org/10.2139/ssrn.2657514

David D. Cole

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9078 (Phone)
202-662-9408 (Fax)

Federico Fabbrini (Contact Author)

Dublin City University - School of Law and Government ( email )

Ireland

Register to save articles to
your library

Register

Paper statistics

Downloads
230
rank
127,270
Abstract Views
957
PlumX Metrics