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Privacy Perspectives | How the U.S. and EU Can Find a Path Forward After Snowden Related reading: Bridging the EU-U.S. Privacy Gap

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The seemingly endless stream of revelations from Edward Snowden about the surveillance activities of U.S. intelligence agencies have put the EU in a bind. Despite the occasional dark suspicions of American officials and media that the goal of EU policy is to hobble American power and influence, the truth is quite different.

But today, the EU needs America’s help in shoring up a strategic relationship that is vital to both sides.

The U.S. remains by far the EU's most important trading partner, importing more than twice as much from the EU last year as China. And despite the EU’s evident desire to avoid conflict with Russia, China or Iran, the U.S. indisputably remains its only true strategic partner in world affairs. Putting aside the inevitable posturing of politicians for the benefit of local lobbies and voters—common on both sides of the Atlantic—no EU government seriously thinks of the U.S. relationship as anything less than indispensable.

And yet the discovery of the extraordinary technical capabilities of our intelligence agencies, and above all the very broad manner in which these capabilities have been deployed, has shocked Europe. Not since the deployment of U.S. short-range nuclear missiles to Germany in the early 1980s (to counter the threat from similar Soviet missiles) has European public opinion been so roiled with doubt about America’s good intentions.

Resolving the tensions between the U.S. and EU over surveillance will not be easy.

EU countries have their own intelligence agencies with sophisticated surveillance tools, and in the wake of recent Islamic terrorism, they are inclined to make more rather than less use of them. The EU's leaders may also acknowledge in private that they count on American intelligence assistance to combat these threats.

But the power of public opinion is something that no politician can ignore. Many EU citizens believe that Internet surveillance by intelligence agencies—whether foreign or their own—is an intolerable violation of their fundamental right to privacy. Democratically elected leaders cannot ignore these voices. It should therefore come as no surprise that the EU's leaders now look urgently to the U.S. for a path forward.

In the real world, a viable path forward can only begin with incremental steps. The U.S. must understand that it will have to accept stricter and more formal limits on its ability to conduct electronic surveillance in the EU. The U.S. will also have to grant EU citizens certain rights of legal recourse similar to those enjoyed by Americans.

The EU, for its part, must understand that the U.S. cannot and will not abolish the FISA court or dismantle the NSA. Such steps are politically impossible in the U.S. and would be harmful to the EU's own well-considered self-interest in a dangerous world.

One concrete measure that is politically feasible in the U.S., and that would take a significant if only partial step toward satisfying EU concerns, would be to limit the power of American courts and prosecutors to seize electronic data stored in the EU by American firms. A bill to do this—the so-called Law Enforcement Access to Data Stored Abroad (LEADS) Act—has been introduced in Congress by a bipartisan group of senators and representatives. It is uncertain when or if the LEADS Act will pass. It could be amended or merged with a related but broader bill intended to modernize the 1980s-era Electronic Communications Privacy Act (ECPA)— the basic law governing judicial access to domestic electronic communications in the U.S.

Congress would be wise to pass both LEADS (or something close to it) and broader ECPA reform, and the White House would be wise to sign them.

The need to restore the EU's confidence in the strategic value of the transatlantic relationship is not the only reason to pass these bills. From a purely domestic point of view, the proposed laws are necessary improvements in our outdated legal framework for law enforcement access to electronic data. But the views of Europeans should not be overlooked by Washington. In these troubled and uncertain times, we need a strategic partner we can count on.

2 Comments

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  • comment Wafa • Apr 3, 2015
    I think you hit the nail on the head here. Reforming the ECPA should be our first priority. But how? It's incredible that the 1980s era ECPA and the SCA are still being used today.
  • comment John • Apr 6, 2015
    The article raises critical points over the US-EU privacy relationship.   I think the US law enforcement assertions of jurisdiction outside their territory raise larger questions of jurisdiction and the digital world.  Extraterritoriality will be a significant question in other areas as well.  For example, the EU's assertion that the RTBF should be applied globally--not just in the EU.  Interesting challenges ahead.