66 Emory L.J. 617 (2016-2017)
How Both the EU and the U.S. Are Stricter than Each Other for the Privacy of Government Requests for Information

handle is hein.journals/emlj66 and id is 635 raw text is: 










HOW BOTH THE EU AND THE U.S. ARE STRICTER THAN
     EACH OTHER FOR THE PRIVACY OF GOVERNMENT
                   REQUESTS FOR INFORMATION

                                  Peter Swire*
                           DeBrae   Kennedy-Mayo**

    Law  enforcement  access to personal data presents a paradox  at the heart of
debates between  the European  Union  (EU)  and the United  States about privacy
protections. On  the one  hand, the  comprehensive   privacy regime  in the EU
contains many   requirements that do not apply  in the United States-the  EU  is
stricter than the United States in applying requirements that do not exist in the
latter. On the other hand, the United  States also sets requirements that do not
exist in the EU, such as the Fourth  Amendment requirement that a warrant be
signed  by a judge upon  a finding of probable cause.  Thus, both are stricter in
important  ways  when  setting standards for law enforcement  access to personal
data. The fact that both sides are stricter in significant respects is important to
two  distinct topics: how  to reform  the system   of Mutual  Legal  Assistance
(MLA),   and  whether   the United  States provides  adequate  protection  for
personal data under EU  law, and thus is an appropriate destination for data flows
from  the EU.

    The relative strictness of standards for law enforcement access is central to
understanding  current obstacles to reforming the MLA   system,  the mechanism
for sharing law  enforcement  evidence  held in one country  for use in criminal
investigations in a different country. Our research team has been writing a series
of articles about MLA  reform.' The  topic has become  increasingly important in


    * Peter Swire is the Huang Professor of Law and Ethics at the Georgia Institute of Technology's Scheller
College of Business, and Senior Counsel at Alston & Bird, LLP. For comments on earlier versions of this work,
the authors thank Deven Desai, Daniel Felz, James Harvey, Justin Hemnmings, Anie Stepanovich, Suzanne
Vergnolle, and Jesse Woo. This article is current as of November 27, 2016.
   ** DeBrae Kennedy-Mayo is a research associate faculty member at the Georgia Institute of Technology's
Scheller College of Business. J.D. Emory Law School.
    1 Peter Swire, Justin D. Hemmings & Suzanne Vergnolle, A Mutual Legal Assistance Case Study. The
United States and France, WIS. INT'L L.J. (forthcoming 2017); Peter Swire & Justin D. Henmmings, Mutual
Legal Assistance in an Era of Globalized Communications. The Analogy to the Visa Waiver Program, N.Y.U.
ANN. SURV. AM. L. (forthcoming 2017) (manuscript at 3) [hereinafter Swire & Henmmings, Mutual Legal
Assistance], http://papers.ssrn.com/sol3/papers.cfm?abstractid=2728478; Peter Swire & Justin Hemnmings,
Stakeholders in Reform of the Global System for Mutual Legal Assistance (Georgia Tech. Scheller College of

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