by Joel Reidenberg
The democracies on both sides of the Atlantic are trying to balance the legitimate needs of the law enforcement and intelligence communities to access online transactional data with the basic rights of citizens to be free from state intrusions on their privacy.
From the recent revelations of massive collection of telecommunications data by the US government to the disclosures of the UK tapping transatlantic telecommunications cables, and of the Swedish government’s warrantless wiretap rules, national data surveillance seems to have few boundaries that the law has effectively protected.
American law has generally focused on access restraints for government to obtain privately held information, ignored the collection and storage of data, and granted special privileges to national security actors. By contrast, Europe emphasizes rules related to the collection and retention of data and focuses less on due process obstacles for government access, while also giving government easier access for national security.
In each system, the elusive linkage between retention and access, the privatization of state surveillance activity, and flawed oversight for national security create extensive transparency of citizen’s data and undermine values of democracy including the presumption of innocence, the state’s monopoly on law enforcement, and the zone of individual freedom.
In effect, government data surveillance law in both Europe and the United States has reached a turning point for the future of information privacy online. Three proposals can help to secure privacy that is necessary to preserve democratic values: stricter retention limits must be combined with stronger access controls; government access to personal information must be logged and transparent to citizens; and government officials must be personally liable for over-reaching behavior.
Wake Forest Law Review forthcoming
Full-text paper (draft) HERE.