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Constitutionalism Across Borders in the Struggle Against Terrorism

Constitutionalism Across Borders in the Struggle Against Terrorism

Edited by Federico Fabbrini and Vicki C. Jackson

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders.

Chapter 9: Reciprocal privacy: towards a transatlantic agreement

David Cole and Federico Fabbrini

Subjects: law - academic, constitutional and administrative law, terrorism and security law, politics and public policy, constitutions


Revelations that the United States (US) National Security Agency (NSA) has been conducting widespread mass electronic surveillance around the world – including vacuuming up vast amounts of data about cellphone location, internet browsing, emails, contact lists, and the like – has sparked the most extensive global debate about privacy that the world has ever seen. The European Union (EU) has been especially critical of the secret activities of the NSA, and the press has been quick to claim that a transatlantic clash has emerged between the EU and the US on matters of privacy and national security. The accounts mirror the contention, first articulated by James Whitman, that there are “two western cultures of privacy” and that the US and the EU are fundamentally different in their respective approaches to privacy and surveillance. In March 2014 the European Parliament (EP) adopted a resolution condemning the NSA’s systematic, blanket collection of personal data, and stating that the “US data protection legal framework does not ensure an adequate level of protection for EU citizens. In October 2015, then, the European Court of Justice (ECJ) in Schrems invalidated the EU-US Safe Harbor Agreement, which allowed private companies to transfer personal data across the Atlantic, ruling that in light of the Snowden revelations, it appeared that law and practice in force in the US did not ensure adequate protection of the personal data held in its territory against US surveillance. We do not dispute that there are important differences between EU and US approaches to privacy.

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