Foreign Nationals and Privacy Protection: A Comparative Transatlantic Analysis

Abstract

Since the Internet has made it easier for governmental authorities in one State to access data of individuals who are citizens of another State, questions about whether the same privacy protections should apply to citizens and aliens are occurring with increasing frequency. This is evidenced by the controversy that erupted in the summer of 2013 regarding access to electronic communications data by intelligence agencies on both sides of the Atlantic. The law of the European Union and the United States demonstrate some important differences in the privacy protection they grant to non-citizens, though both of them tend to prioritize the protection of the privacy rights of citizens. As data processing becomes increasingly globalized, it is not justifiable to base privacy protection solely on an individual’s nationality. For the US, this means that constitutional protections should extend to governmental actions that affect the personal data of non-citizens, and that statutory gaps in protection that discriminate against foreigners should be closed. For the EU, it means that legislation at the national level should not undermine respect for the universality of data protection as contained in fundamental rights law. Legal protection for privacy should be based as much as possible on universal values; removing limits on privacy protection based on nationality would be an important step towards achieving this aim.