Washington and Lee law professor Russ Miller published an essay recently in the newspaper Frankfurter Allgemeine Zeitung, Germany’s version of The New York Times. Prof. Miller’s piece was coauthored with Prof. Ralf Porscher of the University of Freiburg.
In the article, Miller and Porscher examine the NSA evesdropping affair and its impact in European and American relations, with a special focus on the legal-cultural differences that help explain the different reactions to the scandal. They conclude:
Our description of these legal-cultural differences has two consequences for Europeans. First, Europeans cannot expect that mere appeals to an anticipatory, systematic right to informational self-determination will have an effect. If the Americans are to be stirred, then Europeans must be prepared to point to pragmatic consequences for transatlantic relations. The American political system is more likely to react to material disadvantages, as seems to be the case with the newly emerging calls for Congressional review and oversight of the intelligence community in response to the political damage caused by monitoring Chancellor Merkel’s phone. Second, Europeans cannot simply import their broader project of achieving legal harmonization through the European Union project into their negotiations with the Americans over this controversy. Europeans must reflect on their implicit expectation of legal harmonization when pursuing this urgent and important debate over data protection with their American partners. The differences evident between the two sides have their roots in distinct legal traditions. Understanding this distinction and not merely wishing it away will be a key to Europe’s successful engagement with the issue. Agreement, for example, might emerge around calls for the greatest possible legal commitment to transparency in the collection of data and its use. This might satisfy both the European urge for some legal structure while increasing the chances for a political check that fits better with the American approach.
The essay in the Frankfurter Allgemeine Zeitung can be found online here. An English language translation is also available here at the website for the American Institute for Contemporary German Studies.