Every day that we learn more about various countries’ data surveillance programs, one point keeps coming up: national data surveillance seems to have few privacy boundaries that the law has effectively protected. In a new essay that I just posted on “The Data Surveillance State in the United States and Europe,” I take a look at how 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.
As it turns out, the technological infrastructure of online traceability and data collection is matched on both sides of the Atlantic by a legal infrastructure of authorization for wide-ranging government surveillance. In both the US and Europe, there is an elusive linkage between retention and access that weights the scale in favor of state surveillance and a loss of the presumption of innocence where all data is evidence of suspicion. Similarly, on both sides of the ocean, there is a privatization of state surveillance activity through the enlistment of commercial organizations that undermine the traditional democratic commitment to the state’s monopoly on law enforcement. And, lastly, each side tends to have a system of flawed oversight for national security that leads to over-reaching.
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 and for our commitments to key democratic values.
The paper puts forth three proposals to better secure privacy and stop the undermining of democratic values: 1) tighten retention limits and couple with stronger access controls to rein in the dragnets and stem the reversal of the presumption of innocence; 2) require publicly available logging of government data access akin to the US Fair Credit Reporting Act provisions in order to enable oversight of the use of law enforcement powers; and 3) impose liability on government officials who over-reach to provide a counter-incentive against the pressures for creeping missions.