EU Data Protection – The Inconvenient Truth

Author:Mr Jason Weinstein
Profession:Steptoe & Johnson LLP

In the wake of the leaks about the NSA's PRISM program and domestic data collection activities, EU officials have, quite predictably, raised alarms that the NSA's programs pose a grave threat to the privacy of EU citizens. In recent days, European Parliament members have been quoted as calling the NSA programs "shocking" and tantamount to the US "spying" on EU citizens. One member of the European Commission asserted that the US was treating Europeans "not as friends but as suspects" and called on the EU to confront the US about data protection. The Attorney General has made efforts to assuage EU officials about the scope of and protections built into the programs, even going so far as agreeing with the EU to convene a group of experts to explore the programs. Yet the response of many EU officials has been hyperbole and hypocrisy.

The inconvenient truth about data protection in the nations of the EU is that EU citizens' data enjoys very little protection from the nations of the EU. In many EU countries, the government has significantly broader authority than the US to obtain content and other data from providers in national security investigations, often without any court approval whatsoever. In the UK, for example, a government official can issue a warrant to seize data in national security or foreign intelligence matters, without authorization from a court. Moreover, that ability to intercept content without judicial approval remarkably applies not just in national security cases, but also where deemed necessary to protect the economic well-being of the UK or to prevent or detect serious crime. And recent revelations about the efforts by GCHQ to "master the Internet" suggest that the UK should not be throwing any stones across the Atlantic. Similarly, in France, the Prime Minister's office can authorize a national security-related wiretap without court approval or oversight. As with the UK, the French government's ability to authorize extra-judicial wiretaps extends beyond national security to criminal and other matters, including where necessary to prevent organized crime. In Ireland, the Minister of Justice can authorize a wiretap where necessary for either national security or criminal investigations. In Spain, authorities can enter providers' premises without a warrant to conduct searches in urgent national security matters. In Germany, agents not only can intercept electronic communications without court approval, but they also have...

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