The uproar in Europe over revelations that the NSA has been taping the phones of world leaders, such as German Chancellor Angela Merkel, demonstrates that the methods used by America’s intelligence services can do serious harm to transatlantic relations. But there is more at issue here than the unacceptable espionage undertaken against Chancellor Merkel. The completely different reactions to Edward Snowden’s leaks on opposite sides of the Atlantic reveal that there is hardly another legal issue about which transatlantic attitudes diverge so sharply. Americans and Europeans have altogether different views about privacy and data protection. On one hand, Europeans—and especially Germans—do not understand Americans’ seeming indifference toward privacy. On the other hand, Americans do not understand Europeans’ outrage over the collection of seemingly meaningless information.

Part of the problem is that many Europeans view a right to informational self-determination as a self-evident part of the liberty that is protected by basic rights. In fact, a right to control the circulation of our personal information might be seen as naïve in light of our social and technological reality. But this is not what the right to informational self-determination is about. There can be no absolute right to dictate and determine our image in the world. Instead, the right to informational self-determination is best understood as reinforcing other liberty interests—such as free speech or freedom of assembly—that might be threatened by the power that accompanies the possession of personal information. In this sense, the German right to informational self-determination has an anticipatory character. It anticipates a potential harm resulting from the collection, storage, and use of personal information. The right’s anticipatory character is obviously a product of Europeans’ experience with totalitarian regimes—not only in Germany—that used the massive collection of personal information to manipulate their citizens. Europeans learned several things from this: first, that political authority will seek to misuse personal information; second, that the misuse of personal information can contribute to totalitarianism; and third, that the misuse of personal information by a totalitarian regime cannot be corrected by the political process. Against this backdrop it is easy to understand the European desire to establish preventive legal protections against surveillance and the collection of personal information as a constitutional right.

Americans have not recognized a right to informational self-determination. In no-small-part this is because the protection against anticipated threats runs counter to the American legal culture and political tradition. Anglo-American pragmatism informs a legal culture that is less oriented toward systematic prevention. Instead, in keeping with the common law tradition, American law develops in response to distinct, actual cases. The common law does not try to regulate potential problems. Rather, problems are addressed by the law when they actually arise. A preventive right to informational self-determination, which provides protection against mere potential harm, does not fit easily with this legal tradition. Accordingly, American data protection law is also more pragmatic and less global. It is oriented toward responding to actual and specific misuses of personal information. This is also a reflection of America’s collective experience. Of course, the United States has had its experience with political abuse. But these abuses differ from European experiences in at least two ways. First, they never contributed to a descent into totalitarianism. Second, in many cases the abuse was corrected by way of the political process. No doubt, this occasionally required the intervention of the courts. But, the fear of the misuse of personal information is not so deeply-rooted and is framed at least in part by an historical confidence that such abuses can be politically controlled.

American legal culture’s different approach to intelligence abuses is evident in the history that led to the creation of the current legal framework for control and oversight of the American intelligence community. In 1974, Seymour Hersh reported in the New York Times on the illegal activities of the CIA, including the political misuse of intelligence in attempts to influence election campaigns, for political intrigue, and even for attempts to pressure Martin Luther King Jr. to commit suicide. These abuses led the Senate to convene an investigative committee. Named after its Chairman, Idaho Senator Frank Church, the “Church Committee” pursued a comprehensive investigation of the Cold War activities of America’s intelligence agencies that resulted in a nearly exhaustive and thoroughly uncompromising fourteen-volume report. The Church Committee was the basis for the wide-ranging statutory regime for the control of America’s intelligence services that is at the heart of the current debate. One part of this new regime, the Foreign Intelligence Surveillance Act (FISA), placed these agencies—including the NSA—under the supervision of the judiciary. Even if the FISA Court is a secretive institution, FISA must be understood as a serious system for regulating and holding the intelligence community accountable. The political reaction to the discovered abuses became the basis for new legal controls.

The different legal cultures in Europe and the United States might help clarify the different reactions to the latest NSA revelations. From the perspective of the German and European legal understanding, surveillance, data collection, and data storage are themselves an infringement of a preventive constitutional right. From the American perspective, the mere potential misuse is less the concern. Rather, it is much more important that an actual abuse can be demonstrated. With this in mind, the issue is whether—although the NSA can be said to have pursued disproportionate and ill-conceived programs—the personal information was used in manipulation and abuse of the kind discovered by the Church Committee. Surely the reaction in the United States would be different if it were discovered that the NSA programs were being used to politically undermine the Tea Party movement or had been used to influence an election campaign. Even in these circumstances, in the first instance, the reaction would be directed toward the political process.

Our description of these legal-cultural differences has two consequences for Europeans. First, Europeans cannot expect that mere appeals to an anticipatory, systematic right to informational self-determination will have an effect. If the Americans are to be stirred, then Europeans must be prepared to point to pragmatic consequences for transatlantic relations. The American political system is more likely to react to material disadvantages, as seems to be the case with the newly emerging calls for Congressional review and oversight of the intelligence community in response to the political damage caused by monitoring Chancellor Merkel’s phone. Second, Europeans cannot simply import their broader project of achieving legal harmonization through the European Union project into their negotiations with the Americans over this controversy. Europeans must reflect on their implicit expectation of legal harmonization when pursuing this urgent and important debate over data protection with their American partners. The differences evident between the two sides have their roots in distinct legal traditions. Understanding this distinction and not merely wishing it away will be a key to Europe’s successful engagement with the issue. Agreement, for example, might emerge around calls for the greatest possible legal commitment to transparency in the collection of data and its use. This might satisfy both the European urge for some legal structure while increasing the chances for a political check that fits better with the American approach.

Russell Miller is Professor of Law at Washington & Lee University School of Law, a Non-Resident Fellow at AICGS, and a Fellow of the Center for Security and Society at the University of Freiburg (KoRSE). Ralf Poscher is Professor for Public Law and Legal Philosophy at the University of Freiburg and the Chairman of the Center for Security and Society.

  • Gary Schmitt

    Thoughtful piece. But I would argue it confuses somewhat “Europe” with Germany. One only has to examine French intelligence and investigative practices to see that the paradigm being offered doesn’t fit all of Europe. And while not a big a problem, there are ways in which the so-called Anglo-American “common law” approach of the UK and the US are also divergent, with the former having in many instances far less stringent oversight than that of the US.

  • Rob Houck

    I agree with Gary that this is thoughtful and interesting, at least to lawyers. I am inclined to find fault with the US as being way too self-centered. It is harder in this case. Who in Germany is off limits? Apparently Ms. Merkel’s phone, but what about folks like Gregor Gysi? What if a “known” bad guy talks to a German politician? What about members of the 9-11 cell based in Hamburg? Will Germany attract bad guys if they know they enjoy the protection of the German constitution? (I suppose WE have the same risk – the US Constitution would afford the terrorists at least some protection while here. We are not equivalent to Germany. We are a much richer target. We also do not have the history of domestic destruction and terrorism Germany does. Germans do not have our technology, access or motivation. Germany also does not have our (corrosive) political climate. As soon as we have anything approximating another 9-11, Darrell Issa will start an “investigation” to permit him and like-minded colleagues to grill the people who somehow did not use every means available to connect the dots and thwart the evil-doers. Let’s get some guidelines and procedures which address some of these nuts and bolts factors.