How Both the EU and the U.S. Are ‘Stricter’ Than Each Other for the Privacy of Government Requests for Information

Abstract

This article presents and analyzes significant ways that both the European Union and the United States are stricter in certain respects than the other, for the privacy of government requests for information. The ways that both sides are stricter in significant respects has not been clearly analyzed previously, but is important to two distinct topics: (1) whether the United States provides “adequate” protection for personal data under EU law, and thus is an appropriate destination for data flows from the EU; and (2) how to reform the system of Mutual Legal Assistance (MLA). This article is part of the broader Georgia Tech Cross-Border Requests for Data Project.

Part I of this Article provides background for both the current adequacy debates and MLA reform. Part II highlights ways that the EU’s comprehensive data protection regime creates privacy protections, including for law enforcement access, that are stricter than those applied to the United States. Part III highlights ways the United States has stricter rules governing law enforcement and other government access to information. We introduce the term “plus factors” as a way to highlight how specific provisions of U.S. law and practice provide greater protection than the EU approach. Some of these plus factors are structural, such as the assurances of lawfulness provided by over two centuries of the U.S. independent judiciary and operation of a written constitution of checks and balances. Other plus factors are more specific, such as the probable cause standard under the Fourth Amendment and specific provisions of statutes, such as the Electronic Communications Privacy Act (ECPA). Part IV focuses on the implications for MLA reform. Based on our study of both the EU and U.S. systems, we believe there are generally effective rule-of-law protections against excessive law enforcement surveillance in both the U.S. and EU member states. We therefore conclude that these generally effective safeguards provide a promising basis for MLA reform, even where details of the systems differ and specific safeguards on one side do not have precise counterparts on the other.