What is Counter Terrorism?
Unfortunately, the provisions of the new act, the U.S.A. FREEDOM Act fail to address a lot of the remaining and pressing problems of the privacy rights fight nowadays. It did replace the U.S.A. PATRIOT Act; however, it certainly does not solve the problems present in it. This is clearly being represent in the EU reaction and the legal safeguards the EU proceeded to undertake. While the EU is not a perfect political organism, having itself some problematic background regarding data protection140, compared to its counterpart, the U.S., it definitely has more safeguards and remedies in place in order to protect the right to privacy in front of the ever-growing need for security. Unlike the U.S. the EU has a distinct history of adopting legislation meant to protect individual privacy. In 1995 the E.U. adopted Directive 95/46/EC to protect the individuals when one’s personal data is being processed.141 This was one of the efforts of the E.U. directed at protecting data privacy in face of the evolving technologized trend. The Directive aimed at regulation of processing individual data within the European Union. Of course, according to the Directive, countries when processing the information had to do it fair and lawfully. 142 The Directive also contained specific ways/principles in which the personal data shall be collected, processed untransformed, and those specific principles include: notice, purpose, consent, accountability, security, disclosure, access, accountability.143 Moreover, the Directive, in its Article 22, also offered safeguards and remedies to the subjects of the data collection:
“Without prejudice to any administrative remedy for which provision may be made. Inter alia before the supervisory authority referred to in Article 28…, Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.144
However, there are still problems with this provision as it does not offer a clear way through which a person can seek remedies, this being left at the will of the Member States. Moreover, the agreement being a non-binding one. The Directive also offered ways through which the data was transferred to third countries, however, criticism of this includes the outdated policy of transferring this data. 145 Also, given as reason for breach of the provisions of the Directive is again the idea of treat, however this treat is not clearly specified or defined, therefore leaving a lot room for interpretation from other Member States. Moreover, considering the developments in the world since 1995, it would be obvious that the Directive was in need of certain updates. The 2013 Snowden revelations became a catalyst for change in the world and initiatives to better protect privacy rights, as it was clear how previous laws were to outdated to do so, and has given ways for people
Furthermore, the protection of privacy rights was more emphasized as a priority for the European block with the Article 8 of the EU Charter of Fundamental Rights. Also, the Article 18 of the TFEU, the refers to the person’s individual right to data protection by, also, laying down rules that protect the privacy. Therefore, it is not a wonder that other non-E.U. countries and individuals have searched for remedies to their problems regarding privacy within the E.U. justice system, which at the moment seems to be the most appropriate model for the balance between security and privacy. The E.U. had the pressure of devising legislation which would protect the right to privacy of its citizens. It is obvious that up to 2018 the U.S. hasn’t made grade strives to protect the right to privacy, motivating this through the perpetual necessity for protection against terrorism.
Moreover, after the Snowden revelations” and the new EU development in privacy law, the concept of transparency has begun to gain more traction as it is considered vital in protecting the right to privacy. More exactly transparency being a key factor in understanding what the private data of an individual is used for. Moreover, a parallel can be drawn between mass surveillance justified by terrorism and the expressed desire, by some Americans, for the possession of guns justified by the need to protect oneself. Again, in both situation the need for security is evoked as a justification for both situations. Even though in the U.S. research shows that the increase of gun ownership does not make anyone safer, quite the opposite146, the demand for guns is increasing. Mass shooting in the U.S. seem to be a constant issue, therefore an important question needs to be addressed. Mass shooting themselves are an act of domestic terrorism, and so many have taken place in the last years in the U.S., why didn’t the mass surveillance programs manage to predict and consequently stop them? Moreover, except the mass shooting that took place in the U.S., there are the Islamic motivated attacks that took place in Europe over the last few years, some of the most gruesome taking place in the U.K.147 Even with the PRISM program being in full action a lot of European based attacks happened, the security of the citizens was not 100% guaranteed by the surveillance programs, however, their right to privacy was breach either way.
Thus, having those laid in front of it, the E.U., as mentioned above was left with the tremendous task of creating a legislation which would better protect the rights of the citizens without jeopardizing their right to security. In the effort to achieve this the E.U. has considered various ways through which to solve, or to, at least, better the problem. . to seek remedies through the body of the European Union. How the US’s data protection regulation works compared with that of the EU’s as mentioned earlier in the paper is quite different as it does now aim to protect privacy at the general level, but it tries to do that by sectors, so the U.S. has certain regulations protecting privacy by sectors. 139 The problem with this sectorized legislation is the fact that it applies only to the federal government collecting the data directly, but those legislations do not apply to the private entities.140 Here it is important to mention that private entities are one of the ways the federal government collects the personal data of individuals, especially non-U.S. citizens. The U.S. legislations that are concerned with the problems of data privacy is the Freedom of Information Act (FOIA) 141 from 1966. This regulation, however, as it can be observed does not offer any protection from the government collection the information per se, one of the reasons was the year when it was passed, 52 years ago. Moreover, the U.S. federal government being more and more aware about the gaps in the previous legislation, and extension to the Act was adopted, and that the 1974 Privacy Act142 (PL 93-579). Due to its impact the Act was revered as “the centerpiece of U.S. privacy law affecting government record-keeping143 . Further on, in 1988 as an amendment to the Privacy Act, the Congress also enacted the Computer Matching and Privacy Protection Act144, it was meant to regulate the use of computer matching. The name of the Act obviously indicates the purpose of it, and the practise of computer matching means thecomputerized comparison of information about an individual for the purpose of determining eligibility for Federal benefit programs.