Privacy And Power: A Transatlantic Dialogue In The Shadow Of The NSA-Affair

Cover
Half-title
Title page
Copyright information
Table of contents
List of Contributors
Acknowledgments
Introduction: Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair
A Introduction
B Different Reactions to the NSA-Affair
I What’s in a Name? - And Other Anecdotes
II Surveying the NSA-Affair
1 Data Privacy as an Abstract Question
2 Different Reactions to Snowden and the NSA-Affair
III Different Perspectives on Privacy in Scholarship
IV Conclusion
C The Book: A Transatlantic Dialogue in the Shadow of the NSA-Affair
I Part One: Privacy and Data Protection for the Digital Age
II Part Two: Framing the Transatlantic Debate
III Part Three: Transatlantic Perspectives on the NSA-Affair
1 American Voices
2 European Voices
IV Part Four: Transnational Legal Responses to Privacy and Intelligence Gathering
1 International Law
2 European Law
V Part Five: Transatlantic Reflections on the Cultural Meaning of Privacy and Intelligence Gathering
E Conclusion
Part One Privacy and Data Protection for the Digital Age
1 Foucault’s Panopticon: A Model for NSA Surveillance?
A Introduction
B Foucault: Privacy and Power in the Panopticon
C The NSA as the Panopticon?
I The Panopticon as a Valuable Insight into the NSA-Affair
II The Limits on Using the Panopticon to Understand the NSA-Affair
D Conclusion
2 A Rose by any Other Name? The Comparative Law of the NSA-Affair
A Introduction
B The Different Sociolegal Contexts of Privacy
I Different Histories
II Different Political Cultures
III Different Legal Cultures
C The Different Constitutional Law of Privacy
I Different Constitutional Texts
II Different High Courts
III Different Privacy Jurisprudence
1 German Jurisprudence
2 American Jurisprudence
3 Mosaic Privacy and the GPS Cases
IV Different Constitutional Teleologies
D Conclusion
3 Privacy as a Public Good
A Introduction
B The Gap in Law and Policy
I Toxic Data Accumulation
II Privacy’s Individualism Bias
III Toward Privacy as a Public Good
C Privacy as a Public Good
D Applying Public Goods Theory to Privacy Problems
I Repeated Interaction
II Group Characteristics
1 Size
2 Player Heterogeneity and Conditional Cooperation
III Tools to Resist Social Dilemmas
1 Marginal Per Capita Return
2 Communication
3 Sanction
4 Framing
E Conclusion
4 The Right to Data Protection: A No-Right Thesis
A Introduction
B The Issue of Substance
C The Evidence
D The Characteristics the Data Protection Enhancement of Fundamental Rights
E The Comparative Uptake
F An Outlook
Part Two Framing the Transatlantic Debate
5 Privacy, Rechtsstaatlichkeit, and the Legal Limits on Extraterritorial Surveillance
A Introduction
B International Human Rights: Privacy and the Confidentiality of Correspondence
I Scope: Ratione Materiae
II What Constitutes an Interference?
III Extraterritoriality
IV Violation
V The Privacy of Foreigners
C Other International Law Limitations
I State Sovereignty, Nonintervention, and the Prohibition on Extraterritorial Governmental Acts
II The Law of Diplomacy
D European Human Rights Obligations
E Domestic Constitutional Law
F Commercial Actors and Privacy Rights
G Conclusion
6 Privacy, Hypocrisy, and a Defense of Surveillance
A Introduction: Different Notions of Privacy
B Privacy and the NSA: A Political and Procedural Approach
C If Not the Rule of Law, Then What’s Behind Europe’s Alarm over the NSA?
D Conclusion
Part Three Transatlantic Perspectives on the NSA-Affair
I American Voices
7 Sensing Disturbances in the Force: Unofficial Reflections on Developments and Challenges in the U.S.–Germany Security Relationship
A Introduction
B U.S.-German Tensions over Intelligence Activities
C Summary of U.S. Government Reactions to Unauthorized Disclosures
I Initial Reaction
II ‘‘Transparency’’ Reforms
III Stored Communications Act Litigation
IV Review and Revisions to the Bulk Phone Metadata Collection Program
V Privacy Rights of Non-U.S. Persons
D Observations, Outlook, and Challenges
I Technology Companies’ Technological Responses
II Article 29 Data Protection Working Party, 819/14/EN, WP215, Opinion 04/2014 on Surveillance of Electronic Communications for Intelligence and National Security Purposes
E Topics for Transatlantic Discussion
F Conclusion
8 Metadeath: How Does Metadata Surveillance Inform Lethal Consequences?
A Introduction
B The Snowden Disclosures and Recent Targeted Killing Disclosures
C The Logic and Limits of Algorithmic Intelligence
D Conclusion
9 ‘‘We’re in This Together’’: Reframing E.U. Responses to Criminal Unauthorized Disclosures of U.S. Intelligence Activities
A Introduction
B American Intelligence: Highly Regulated
C The Problems with European Condemnations of the U.S. Intelligence Community
I The European Union Is the Wrong Forum for Security and Intelligence Debates
II E.U. Member States Do Not Provide Greater Oversight and Control - Worse, They Are also Guilty of Invasive Surveillance
III E.U. Political Attacks on the U.S. Intelligence Community Gainsay European Security Interests
D Re-Normalizing the E.U.-U.S. Relationship
10 Fourth Amendment Rights for Nonresident Aliens
A Introduction
B Background on the Fourth Amendment and NSA Spying in Germany
I Background on the Fourth Amendment
II NSA Spying in Germany
C A Careful Reading of the Case Law
I The Fourth Amendment and ‘‘the People’’
II Historical Purpose of the Fourth Amendment
III Remaining Arguments
D The Reasonableness of Applying the Fourth Amendment to NRAs
E The Balance of Considerations
F Conclusion
11 Forget About It? Harmonizing European and American Protections for Privacy, Free Speech, and Due Process
A Introduction
B The CJEU’s ‘‘Right to be Forgotten’’
C Google’s Interpretation and Implementation of the Decision
D Substantive Law: Balancing Privacy and Free Speech Rights Within the United States
E Procedural Law: According Due Process to Parties Whose Free Speech Rights Are Affected
F Conclusion
II European Voices
12 The Challenge of Limiting Intelligence Agencies’ Mass Surveillance Regimes: Why Western Democracies Cannot Give Up on Communication Privacy
A We Live in Surveillance States
B Why Didn’t Anyone Notice?
C Law in the Hands of Agents?
D The Transatlantic Relationship
13 German Exceptionalism? The Debate About the German Foreign Intelligence Service (BND)
A Introduction
B German Exceptionalism: The German Reaction to the NSA-Affair
C The NSA-Affair in a Global Context
D Status of Foreigners, Secrecy of the Law, and Oversight
I Broad Authorization and the Problematic Distinction between Foreign and Domestic Intelligence
II Secrecy About Interpretation and Application of the Laws
III The Dilemma of Oversight: Secrecy Undermines Accountability
E The NSA Committee of Inquiry: Lots of Questions about the BND
I Broad Authorization and the Problematic Distinction between Foreign and Domestic
II Secrecy About Interpretation and Application of the Laws
III The Dilemma of Oversight: Secrecy Undermines Accountability
F Conclusion: State of Affairs in the Transatlantic Reform Debate
14 The National Socialist Underground (NSU) Case: Structural Reform of Intelligence Agencies’ Involvement in Criminal Investigations?
A Introduction
B The NSU Case
C Framework of the Intelligence Agencies in Germany
D Structure, Tasks, and Powers
I Federal Office for the Protection of the Constitution
1 Structure and Tasks
2 General Powers
3 Informants
4 Expanded Powers for Investigating Terrorist Activities
II Federal Intelligence Agency
III Military Counter-Intelligence Service
IV Conclusion
E Cooperation of the Intelligence Services and the Police
I Exchange of Information
II Counter-Terrorism Database and Rightwing-Extremism Database
III Additional Databases
IV Organizational Cooperation
V Conclusion
F Conclusion: Problems Solved?
I First Steps
II Reforms and Open Questions
15 Legal Restraints on the Extraterritorial Activities of Germany’s Intelligence Services
A Introduction
B Intelligence Architecture, Foreign Affairs, and the Gentle Power of Juridification
C The Rule of Law and Executive Actions Abroad
D Requirement of a Statutory Authorization of Intelligence Collection Abroad?
I Extraterritorial Applicability of Basic Rights
II Infringement of Basic Rights by Covert Intelligence Gathering Abroad?
1 The Territorial Dimension: Sovereign Functions and Effective Control
2 The Personal Dimension: Foreign State Organs and Basic Rights
3 Intelligence Operations Abroad Compared to Military Missions
4 Human Dignity Restraints on State Actions
III The Challenge of Transboundary Surveillance
IV Conclusion
E Actions Abroad in the Statutory Law Relating to the Intelligence Services
I G-10 Act
II BND Act
III Binding Customary International Law
F Transfer of Intelligence Collected Abroad into Domestic Proceedings
G German Foreign Intelligence Law: A Brief Evaluation
H The Law of Intelligence Services as a Globalization-Proof Stronghold?
16 Assessing the CJEU’s ‘‘Google Decision’’: A Tentative First Approach
A Introduction
B The Decision and Its Effects
I The Google Spain Case
II Correct Starting Point
III The Issues Involved
IV The CJEU’s Assumptions
V The Formal Aspect of the Decision: Search Engine Operators’ Full Responsibility for the Content of Listed Sites
VI The Material Aspect of the Decision: The Categorical Priority of the General Right of Personality
VII Questions with Regard to the Scope of the Decision and Subsequent Problems
VIII Considerations on the Solution of the Substantial Questions
C Open Questions
Part Four Transnational Legal Responses to Privacy and Intelligence Gathering
I International Law
17 Toward Multilateral Standards for Foreign Surveillance Reform
A Introduction
B Proposals for Surveillance Reform
C A Roadmap for Multilateral Standards
I Laws and Procedures for Authorizing Surveillance
II Rules Governing Intelligence Practice
III Methods of Oversight and Accountability
D Next Steps
18 Espionage, Security Interests, and Human Rights in the Second Machine Age: NSA Mass Surveillance and the Framework of Public International Law
A Introduction
B Espionage and General Public International Law
C Espionage, Mass Surveillance, and International Human Rights Law
D The Supplementary Agreement to the NATO Status of Forces Agreement
E Espionage by Mass Surveillance: Lost in Fragmentation?
F Conclusion
19 The Need for an Institutionalized and Transparent Set of Domestic Legal Rules Governing Transnational Intelligence Sharing in Democratic Societies
A Introduction
B A Legal Framework Regulating Intelligence Cooperation Agreements
C Assessing the Human Rights Record of the Collaborating Party Before Sharing Intelligence
I An Example: The Dutch Intelligence and Security Services Act 2002
II Analysis of the Implications of the Introduction of a Legal Clause Obliging Intelligence Services to Assess the Human Rights Records of Collaborating Parties
D Additional Proposed Rules That Could Govern Transnational Information Sharing
E Oversight of Intelligence Sharing Agreements
F Conclusion
II European Law
20 Developments in European Data Protection Law in the Shadow of the NSA-Affair
A Introduction
B The Judgments of the Court of Justice of the European Union (CJEU)
I The CJEU’s Data Retention Decision
1 Directive 2006/24/EC on the Retention of Data
2 The Judgement of April 8, 2014
a) Interference with the Rights Laid Down in Articles 7 and 8 of the Charter of Fundamental Rights
b) Justification of the Interference
3 Analysis of the Judgement
a) The Judgement as a Reaction to the Snowden Revelations?
b) Effects of the Judgement on Third Countries, Such as the United States
c) The Judgement as a Milestone in the Development of E.U. Data Protection Law
d) E.U. Competence Creep through Fundamental Rights?
4 Summary
II The CJEU’s Google Spain Case
III The CJEU’s Schrems/Facebook Decision
IV Reflections on the CJEU’s Jurisprudence - In the Shadow of the NSA-Affair
C Initiatives of the European Parliament
I European Parliament Resolution of March 12, 2014 on the U.S. NSA Surveillance Program
II European Parliament Legislative Resolution of March 12, 2014 on the Proposal for a General Data Protection Regulation: Amendment 140
D The Commission and the Council - Reluctant Reaction to the NSA-Affair
E Conclusion
21 Why Blanket Surveillance Is No Security Blanket: Data Retention in the United Kingdom after the European Data Retention Directive
A Introduction: From Targeted to Mass Surveillance
B A Brief History of the Data Retention Directive
C Digital Rights Ireland (2014) - The Directive Is Dead
D Reactions to Digital Rights Ireland - the Directive Is Dead, Long Live the Directive
E The Data Retention and Investigatory Powers Act 2014 - Emergency, What Emergency?
F Critical Responses to DRIPA - Less a Drip than a Torrent
G Conclusion
22 Do Androids Forget European Sheep? The CJEU’s Concept of a “Right to be Forgotten” and the German perspective
A Introduction
B Background: The Google Spain Case
I Facts of the Case
II The Right to Erasure or Objection: Legal Foundation and Prerequisites
III Applicability of the Data Protection Directive
1 Processing Personal Data
2 Google as Controller of the Data
3 In the Context of the Activities of the Establishment
IV The Right to Erasure or Objection: Delisting Decisions
1 Balancing Rights and Interests
2 Distinction between Lawful Content and Lawful Reference
3 Procedural Aspects and Judicial Review
V Remarks
C Reconciling Google Spain with the German Legal Tradition
I Jurisdiction in Internet Cases
II Search Engines as Subjects of Data and Personality Rights Protection Regulation
III Right to Privacy and Freedom of Expression in Online Archives
IV Procedural Aspects
V Consequences
D Reaction of Google, European Data Protection Commissioners, and National Data Protection Agencies
I Delisting Activities
II Advisory Council Report
III Recommendations of the Article 29 Data Protection Working Party
IV Proceedings in France and the United Kingdom
E Proposal
I Debate over the CJEU’s Decision
II Lawful Content and Lawful Reference
III Geographical Scope of Implementation
VI Procedural Implementation
1 Notice and Counter-Notice
2 Arbitration
F Closing Remarks
23 Adequate Transatlantic Data Exchange in the Shadow of the NSA-Affair
A Introduction
B Concepts
I Personal Data and Data Protection
II Privacy
III Law Enforcement and Intelligence
C Adequate Transatlantic Data Transfers
I The Adequacy Requirement: Inconsistencies and Assumptions
II Reforming the Adequacy Requirement in the European Union
III Safe Harbor and Adequacy
D Data Protection Standards
I Accuracy and Reliability
II Purpose Limitation and Necessity
III Necessity, Proportionality, and the NSA-Affair
E Adequate Rights
F Adequate Transatlantic Data Exchange: A Work in Progress
Part Five Transatlantic Reflections on the Cultural Meaning of Privacy and Intelligence Gathering
24 The Intimacy of Stasi Surveillance, the NSA-Affair, and Contemporary German Cinema
A Introduction
B The Stasi’s Embodied Surveillance
C A Man Who Really Listens and Narrates: Surveillance in The Lives of Others
D The Seduction of Sensory Intimacy: Surveillance in Barbara
E The Familiar Agent: Surveillance in Two Lives
F Conclusion: Stasi Surveillance and the NSA
25 Hans Fallada, the Nazis, and the Defense of Privacy
A Introduction
B Fallada and the Fragility of Privacy
C Nazi Surveillance, Control, and Terror - Fallada’s Literary Portrayal
D Conclusion
26 ‘‘It Runs Its Secret Course in Public’’: Watching the Mass Ornament with Dr. Mabuse
A Introduction
B Reconsidering A Storied Antipathy: Kracauer and Lang
C The Mass Ornament
D Dr. Mabuse
E Conclusion
27 Secrecy, Surveillance, Spy Fiction: Myth-Making and the Misunderstanding of Trust in the Transatlantic Intelligence Relationship
A Introduction
B The Intelligence Evolution
C Merging Fact and Fiction
D Three Days of the Condor and Enemy of the State: Waking Up from a Nightmare?
E The Power of Secrecy and Vagueness
28 CITIZENME: What Laura Poitras Got Wrong About the NSA-Affair
A Introduction
B Synopsis of CITIZENFOUR
C CITIZENME
D Opacity and Loathing
E Conclusion
Index