European Versus American Liberty: A Comparative Privacy Analysis of Antiterrorism Data Mining

It is common knowledge that privacy in the market and the media is protected less in the United States than in Europe. Since the terrorist attacks of September 11, 2001, it has become obvious that the right to privacy in the government sphere too is protected less in the United States than in Europe. This Article brings alive the legal difference by considering the case—real in the United States, hypothetical in Europe— of a spy agency's database of call records, created for the purpose of identifying potential terrorists. Under U.S. law such an antiterrorism database might very well be legal. But under European law the very same database would clearly be illegal. Numerous barriers to transatlantic cooperation on fighting terrorism and cross-border crime have been created by this legal difference. The Article considers the reasons for the transatlantic difference--surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than are Europeans. Based on the transatlantic comparison, this Article concludes with a number of recommendations for the reform of U.S. information privacy law, chief among them being the creation of an independent privacy agency.