GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2015

Status

Accepted

Abstract

At the request of the LIBE Committee of the European Parliament, this study surveys the U.S. system of data protection in the field of federal law enforcement. Since the legal category of “data protection” does not formally exist in U.S. law, the study begins by setting out the substantive and procedural requirements of EU law that are canvassed in the context of information-gathering and surveillance by U.S. law enforcement agencies. The study then analyzes the data protection law governing federal agencies according to two criteria: sources and methods of surveillance and data collection. It first reviews the two principal sources of U.S. data protection law: the Fourth Amendment to the US Constitution and the Privacy Act of 1974. The study then considers the legally prescribed methods of data collection and surveillance, together with their associated data protection guarantees, in ordinary criminal investigations and national security investigations. Throughout, the study pays special attention to the rights afforded to EU citizens. The study calls attention to a number of discrepancies with respect to EU law, including: the relatively low legal threshold for engaging in bulk collection in national security investigations; the absence of significant legal restrictions on information sharing between intelligence and law enforcement agencies; and the two-track privacy scheme for U.S. and non-U.S. persons.

GW Paper Series

GWU Law School Public Law Research Paper No. 2015-54; GWU Legal Studies Research Paper No. 2015-54

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