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

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.