Much of the congressional debate about the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act concerns the paradox that an authority designed by Congress to spy on foreigners on foreign soil has been used by U.S. government agencies to spy on Americans – 278,000 warrantless searches of Americans in a recent one-year period.
The U.S. debate understandably revolves around Americans’ concern about our government spying on us. But it shouldn’t come as a surprise that Europeans – who enjoy no Fourth Amendment protections under U.S. law – are also not thrilled by the idea that the U.S. government freely accesses their private information and communications.
European frustration with the U.S. government’s appetite for surveillance is becoming a source of major trade friction with the United States. In 2020, the European Court of Justice struck down a U.S.-EU data flow agreement known as the Privacy Shield precisely because of concerns about the aggressive use of surveillance by U.S. intelligence services. The EU and U.S. appear to be finalizing a new data flow deal this summer.
But this deal could be upended by continuing rows between the two economic zones over surveillance. The Irish Data Protection Commission in late May found Meta – owner of Facebook – in violation of Europe’s General Data Protection Regulation when it transferred the personal data of Facebook users to the United States without sufficiently protecting them from U.S. government surveillance.
The EU followed up by enforcing Ireland’s finding with a fine of €1.2 billion. Meta will appeal.
Even for Meta, this is an eye-popper of a fine. But it is perhaps small potatoes compared to the potential cost to the more than 5,000 U.S. companies that do business in Europe if a data sharing agreement cannot be reached.
To be fair, there is a bit of disingenuousness here. There is sometimes a whiff of protectionism in Europe’s high-minded critiques of companies that, surprise, always turn out to be American. And EU countries are hardly innocent when it comes to spying. They have massive surveillance operations targeting Americans, as well as their own citizens, with no Fourth Amendment protections offered under their law.
But the issue remains that Europe is demanding that its private citizens who are not likely to communicate information about foreign threats not be targets of routine U.S. surveillance. Congress will, of course, maintain foreign intelligence. But if it places reasonable limits on surveillance generally, and especially bulk surveillance, and if it removes barriers to judicial review of surveillance, those steps alone might be enough to rebuild trust with Europe.
Reforming FISA would help as well. Simply applying a warrant standard for U.S. persons would go a long way in demonstrating to Europe that the United States is turning the page on unrestrained surveillance.