How much data privacy is appropriate with respect to the prevention of terror threats? The U.S. and Europe seem to have very different views. In a very interesting essay in the German journal FAZ (Kampf der Kulturen (Clash of Cultures), Frankfurter Allgemeine Zeitung, Nov. 28th) Russell Miller, Professor of Law at the Washington and Lee University School of Law and Ralf Poscher, University Freiburg, stated that there’s a fundamental difference between the traditions of law in the U.S. and Europe. The view in Europe is largely shaped by the experience of totalitarian regimes in the 20th century. In a nutshell, Europe is outspoken against pre-emptive data collection as this data could be mis-used later and often has been mis-used in the past. From a U.S. perspective, however, Miller and Poscher argue, law develops by case and as long as no harm has been done there’s no need to change. In the past, the free press in the U.S. has been the fourth power that uncovered misuse in case it happened and the legislation took action accordingly – as e.g. in 1974 when Seymour Hersh uncovered the misuse of data illegally obtained by the CIA and the Church Committee thoroughly investigated. In that sense, Miller and Poscher observe, some U.S. politicians are now taking a different view as they question whether the political damage that occurred as it became known that Angela Merkel and other European leaders have been wiretapped isn’t outweighing the benefits for the U.S.
In the meantime, U.S. courts have dealt twice with the question whether bulk metadata collection is illegal, see e.g. Forbes: “Now It Gets Interesting, We’ve One Court Stating That The NSA Data Collection Is Legal, Another Illegal”. The judge in Washington D.C., Richard J. Leon, stated “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” which would most likely infringe on the “that degree of privacy’ that the founders enshrined in the Fourth Amendment.” The New York judge however said “The right to be free from searches is fundamental but not absolute. Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.”
If Miller and Poscher are right then the outcome of the inquiry whether this data collection is illegal or not is not at all clear, unless some real damage will be uncovered.