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Hastings Constitutional Law Quarterly

Abstract

The public debate surrounding Edward Snowden's revelations about NSA spying, and government surveillance in times of war and peace more generally, has been passionate and unfocused. This Article takes a look at the legal background and current reform proposals. First, it puts the recent international and domestic outrage regarding the NSA's programs into the context of other countries' intelligence gathering, sharing and cooperation practices. Next, it recalls the purposes of espionage and the legality of spying under international law as well as under national laws from the perspective of the spying and spied-upon government. It then proceeds to assess the impact of European and U.S. data privacy laws on surveillance by intelligence agencies and discusses a variety of reform proposals.

Current political reactions, including threats to suspend free trade negotiations, individual cross-border transactions, or cooperative programs like SWIFT or the U.S.-EU Safe Harbor program have counterproductive effects for national security and privacy. Proposals to nationalize or regionalize email, the Internet, or cloud computing are technologically impractical and would be ineffective so long as the various national secret services collaborate and share information. EU data protection law does not and cannot protect EU residents any better from foreign cybersurveillance than U.S. law can or does. Each country's laws can only offer meaningful protection from its own government agencies. That is where those who want reform should focus-and consider the trade-offs between privacy and security.

This Article recommends for consideration a focus on enhancing the government's data security measures to reduce data leaks, security concerns, and diplomatic tensions caused by public embarrassment; bolstering procedural and organizational safeguards at government agencies tasked with surveillance; and redrawing the rules for cooperation between intelligence and law enforcement agencies, permitting information sharing only in clearly enumerated cases of extreme and immediate threats to national security.

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