Separated by a Common Language?

Abstract

This paper examines recent controversies in the legal and policy debate between the U.S. and the EU on the sharing of data in the implementation of transatlantic counter-terrorism measures. The nexus between law and policy in this area is particularly close, reflecting the preferences each jurisdiction has in protecting civil liberty and security interests. While the U.S. and the EU offer differing legal frameworks on data privacy, the strategic importance of data in counter-terrorism law and policy necessitates a joint approach. A failure to arrive at such an approach can result in a series of bilateral agreements between the U.S. and individual EU countries, creating unnecessary costs, inconvenience, and uncertainty for both users and processors of data. The haphazard approach in the past, and the continuing failure to come to a proper accord, reflects the tension between civil liberties and the right of the state to erode such entitlements in the face of a terrorist threat. In addition, the failure to come to an accord reflects the uneasiness U.S. and EU lawmakers feel about the compromises they have already made. Fortunately, skirmishes over the cross-border transfer of data can encourage both sides to incorporate elements from the differing approaches into their respective policy regimes.

Part II of this paper sets out a factual summary of the recent cases involving the transfer of airline passenger data between the EU and the U.S. This section will also analyze U.S. intelligence authorities' access to the SWIFT database. Part III sets out a discussion of the policies underlying data privacy laws in the U.S. and the EU. Part IV critically examines a proposed solution to the issue, and the policy implications of the steps taken to further legal decision-making in this area. Finally, Part V provides some concluding remarks.