At the House Oversight Committee hearing on the NSA issues, Deputy Attorney General James Cole cited our work at Hogan Lovells on EU national security access to data. He was referring to our recent whitepaper, "A Sober Look at National Security Access to Data in the Cloud," which examined the process for national security collection of data in selected foreign jurisdictions.
So, is personal data better shielded in Europe from the prying eyes of national security investigations than it is in the United States? That is a general assumption many people have, even those in the privacy field, but it may not be a correct assumption.
Privacy scholars from around the world were gathered in Berkeley, CA, when the NSA data collection news broke. The EU privacy experts immediately clucked disapproval over the U.S. intelligence-gathering regime and activities, renewing the claim that privacy “as a human right” is much more protected in Europe.
But it is naïve to think that intelligence agencies in European countries do not utilize information collected from phone and Internet companies in their investigations. And privacy hawks may be surprised to learn that the United States imposes at least as much, if not more, due process and oversight on foreign intelligence surveillance than other countries afford in similar circumstances.
In other words, the extensive judicial approval and legislative oversight procedures built into the Foreign Intelligence Surveillance Act (FISA) actually exceed what would typically be expected in a country conducting foreign intelligence surveillance. Recall that these checks were added to the U.S. law in light of the unchecked access the government previously enjoyed. By necessity, the judicial and legislative decisions made in the exercise of the FISA approval and oversight functions are secret. But the fact that legal and political scrutiny is provided by independent judges and representatives from both parties is an important check.
Few countries provide for the kind of judicial authorization and oversight of foreign intelligence/counterterrorism investigations built into the American framework.
In France, for example, no courts are involved in interceptions under its national security access-to-information law, and the interceptions are kept secret. The requests for interception are presented to the prime minister's office, which grants the authorization. Afterwards, the authorizations are presented to a special security commission that can evaluate the justification for the warrant and inform the prime minister of any concerns. The commission is comprised of three persons: one named by the French president upon recommendation by the French Conseil d'Etat and the Cour de Cassation, one member of the National Assembly and one member of the Senate. The commission provides an annual report to the French Parliament.
The French law is comparable to FISA in that it provides the government with broad authority to acquire data from phone and Internet providers for national security reasons. Unlike FISA, however, the French law does not involve a court in the process; instead, it only involves an independent committee that only can recommend modifications to the executive. In addition, France's law is broader than FISA in that it permits interceptions to protect France's “economic and scientific potential,” a justification that is lacking in FISA.
In Germany, the Federal Office of Criminal Investigation, the Bundeskriminalamt (BKA), has broad authority in investigations that concern national security or terrorism. For example, the BKA is permitted to use a computer virus, the so-called Bundestrojaner, or “Federal Trojan,” to search IT systems, monitor ongoing communications and collect communication traffic data without the knowledge of data subjects or service providers. While the BKA must obtain a court order to use the Federal Trojan, service providers are not aware of its deployment, as compared to FISA, through which service providers receive notice of and are given an opportunity to contest acquisition orders handed down by the FISC.
In the UK, interception warrants relating to foreign intelligence are generally issued by the foreign secretary. Although a warrant issued under these provisions must be “proportionate” to the intended purpose, the courts play no role in the authorization or review of these interceptions, as they do in the United States. Moreover, while there is an Investigatory Powers Tribunal, composed of nine senior members of the legal profession, that hears complaints under the surveillance law, the absence of a requirement to provide after-the-fact notification to those who have been placed under surveillance suggests that many who might have cause to bring claims to the tribunal will not in practice do so.
European skepticism of the privacy protections in FISA is understandable. A casual reader of FISA might conclude—mistakenly—that the foreign intelligence measures targeting non-Americans are indiscriminate and conducted without court supervision, which is incorrect. Instead, the government must certify before the special foreign intelligence surveillance court, comprised of independent judges with lifetime tenure, that the surveillance is to obtain “foreign intelligence information,” a term closely tied to the hostile acts and official activities of foreign countries and terrorist organizations.
Decisions relating to national security surveillance are classified in the U.S. as they are in European countries. Only certain qualified U.S. judges and members of Congress have access to the actual decisions. While it is not possible to access this classified data that could disprove Europeans' suspicions, there are published, unclassified procedures and protections incorporated into the U.S. intelligence-gathering process that provide important checks as a matter of process.
Also, it is worth noting that in the EU, there is an obligation for telecommunications and Internet companies to retain personal information, potentially for up to two years. There is no such retention law in the U.S. that would require data to be stored for access by government investigators. The EU Data Retention Directive was enacted following the terrorist attacks in London and Madrid to combat terrorism, to keep data available for access by governmental authorities. The European Data Protection Supervisor has called this rule the most privacy-invasive instrument ever adopted by the EU in terms of scale and the number of affected people. That data retention directive combined with the lack of transparency and formal checks on national security access to personal data in many European countries should give advocates pause when they single out the United States for its national security activities.
There are no guarantees, in the U.S. or anywhere else around the world, that government authorities are abiding by the laws restricting access to personal data in the name of national security. (The newly reconstituted Privacy and Civil Liberties Oversight Board in the U.S. already has announced it will be looking at the recent U.S. episodes.) But the degree of authorizations required and the kind of review that occurs is relevant indeed to a determination of how well personal privacy and liberty are protected.
Viewed that way, the U.S. fares better than many other countries.
The EU critics of U.S. privacy protections would be well-advised to take stock of their own countries’ national security access to personal data.
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