Privacy Wars: EU Versus US: Scattered Skirmishes, Storm Clouds Ahead


PRIVACY WARS: EU VERSUS US: SCATTERED
SKIRMISHES, STORM CLOUDS AHEAD

Allen Shoenberger*

"A man in a police cell is entitled to privacy just as much as a man sitting at his
fireside in his own home."'

Disclosure through publication of still photos from a closed-circuit television
film of a person brandishing a knife while walking on a public street,
"constituted a disproportionate and therefore unjustified interference with his
private life.",2

Terrorists allegedly plot to blow up ten airplanes flying from Britain to the
United States. The European Court of Justice invalidates an agreement by the
European Union (EU) to provide airplane passenger data to the United States
government, citing privacy concerns.3

"The Convention protects the community of men; man in our times has a need
to preserve his identity, to refuse the total transparency of society, to maintain
the privacy of his personality."4

President Bush authorizes a domestic surveillance program without informing
Congress. The New York Times discovers the program and reveals it four years
later.5

"The money transfer company SWIFT has for years secretly supplied U.S.
authorities with huge amounts of personal data for use in antiterrorism

° Professor of Law, Loyola University Chicago School of Law, J.D. Columbia Law School,
LL.M. New York University School of Law. I would like to thank my wife, Caroline
Shoenberger, J.D., M.B.A., M.A., B.A., for her many contributions toward this Article over
years of discussion.

1. Wood v. United Kingdom, App. No. 23414/02, 636 Eur. Ct. H.R. (2004) (quoting
British trial judge). Contra Hudson v. Palmer, 469 U.S. 517, 530 (1984) (prisoners have no
legitimate expectation of privacy in jail cells with respect to any matter in the cell).

2. Peck v. United Kingdom, App. No. 44647/98, 36 Eur. H.R. Rep. 41, 1 87 (2003).
3. See Cases C-317/04 and C-318/04, Eur. Parliament v. Council of the Eur. Union and

Comm'n of the Eur. Cmtys., 2006 E.C.R. 1-4721.
4. Malone v. United Kingdom, App. No. 8691/79,7 Eur. H.R. Rep. 14(1985) (Matscher

& Farinha, JJ., partially dissenting) (referring to the European Convention on Human Rights and
Fundamental Freedoms).

5. Scott Shane, Spying Debate Interrupts Senate Session on Security, N.Y. TIMES, Feb.
3, 2006, at A16. In February 2006, the ABA House of Delegates took a position in opposition
to the program. In particular, the ABA stated that it "opposes any future electronic surveillance
inside the United States by any U.S. government agency for foreign intelligence purposes that
doesn't comply with the 1978 Foreign Intelligence Surveillance Act." Quick Work on Policy
Opposing Surveillance, 5 A.B.A. J. E-REP., Feb. 17, 2006.



IND. INT'L & COMP. L. REV.

investigations, violating EU privacy rules....-

As a result of a May 30, 2006, decision of the European Court of Justice
(ECJ), each passenger airplane coming from Europe to the United States faced
the possibility of multi-million dollar fines for failure to divulge passenger data
to the U.S. government prior to arrival.7 Fortunately for the busy summer travel
season, the court effectively stayed its decision until September 30, 2006.8 The
decision in European Parliament v. Council of the European Union and
Commission of the European Communities reflects the sharp differences
between European and American privacy law. While it is widely assumed that
the impact of the decision can be dealt with by the deadline, the narrow
decision of the ECJ leaves several fundamental questions of European privacy
law unresolved, which may only be settled by the European Court of Human
Rights.9

The September 27, 2006, opinion by the Commission for the Protection
of Private Life of Belgium regarding SWIFT's failure to comply with EU and
Belgian privacy law in providing massive amounts of financial data transfer
information to the U.S. government suggests that many more areas of conflict
remain to be resolved between the United States and EU regarding privacy
matters.10

This is significant for several reasons. First, the United States exists
today in an interdependent, global economy. The actions of the United States
affect the rest of the world, and the United States is also affected by actions of
other states." For example, American firms that market products and services

6. Transfer of Bank Data to U.S. Rebuked, Cin. TRm., Sept. 15, 2006, at C20.
7. See Cases C-317/04 and C-318/04, Eur. Parliament v. Council of the Eur. Union and

Comm'n of the Eur. Cmtys., 2006 E.C.R. 1-4721, 965-66.
8. Id. at$ 74.
9. In an article dated October 6, 2006, the New York Times indicated that a revised

agreement had been reached. Various changes in the previous agreement indicated that the
United States would have more latitude in sharing data among law enforcement authorities but
that the data would not be automatically shared; transfers would only happen upon request. One
explanation was that the data could no longer be pulled by the United States; it had to be pushed
by the EU. The agreement remains subject to approval by the EU member nations, a matter that
may have happened within the following week, according to the article. Europe and U.S. Agree
on Air Passenger Data, N.Y. TIMES, Oct. 6, 2006, at 8, available at
http://www.nytimes.com2006/1l0/06/world/europe/07aircnd.html.

10. Commission de la Protection de la vie Privee, Opinion on the Transfer of Personal
Data by SCRL SWIFT Following the UST (OFAC) Subpoenas, available at
http://www.privacycommission.be/communiqu%E9s/summary-opinion-swift_%2028_09_2006
.pdf. SWIFT has approximately 7800 financial institutions as clients. The Belgian investigation
indicated that 2.5 billion records "could have been the subject of subpoenas" during the year
2005. Belgians Say Banking Group Broke European Rules in Giving Data to U.S., N.Y. TIMES,
Sept. 29, 2006, at 10. See also EC Vows No Cover-Up on SWIFT Scandal, Bus. WK., July 7,
2006, http://www.businessweek.com/print/globalI 2/content/jul2006/gb20060707_22460.htm.

11. "In 1995, EC companies owned about 58% of all foreign direct investment in the
United States, and US companies held about 44 percent of foreign direct investment in the EC
According to one study, European investment supported 12 percent of US manufacturing jobs in

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PRIVACY WARS: EU VERSUS US

in Europe, and thus their employees, are directly impacted by European privacy
law. Privacy law can be used as a trade barrier, negatively impacting the U.S.
economy. Lawyers, businessmen, and citizens should therefore have an
understanding of the contours of those laws.

Second, in important Constitutional opinions, the U.S. Supreme Court
has cited European Court decisions as well as European laws and treaties.' 2

There is every indication that this will continue, as it is a simple reflection of
global interrelationships at both an economic and jurisprudential level.
Moreover, United States Supreme Court Justices, as well as the Justices of
European courts, talk to each other on a routine basis. Several years ago, a
group of my law students were seated in Luxembourg to hear oral arguments
before the European Court of Justice. Four United States Supreme Court
Justices then walked into the courtroom and sat in the front spectator row to
hear the arguments. 13 Additionally, amicus briefs are now routinely filed in the
United States Supreme Court by attorneys for the European Union.14

1995." Mark Pollack & Gregory Shaffer, Transatlantic Governance in Historical and
Theoretical Perspectives, in TRANSATLANTIC GOvERNANCE IN THE GLOBAL ECONOMY 13-14
(Pollack & Shaffer eds., 2001) (citation omitted). "The US and EU... remain the world's most
important economic powers and each other's primary economic partners." Mark Pollack &
Gregory Shaffer, Who Governs, in TRANSATLANTIC GOVERNANCE IN THE GLOBAL ECONOMY 287,
291 (Pollack & Shaffer eds., 2001).

The European Union and the United States are the two largest economies in the
world. They account together for about half the entire world economy. The EU
and the US have also the biggest bilateral trading and investment relationship.
Transatlantic flows of trade and investment amount to around $1 billion a day,
and, jointly, our global trade accounts for almost 40% of world trade. By
working together, the US and the EU can promote their common goals and
interests in the world much more effectively.

European Union - United States Facts and Figures - Statistics,
http://www.eurunion.org/profile/facts.htm (last visited Mar. 28, 2007).

12. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (citing Dudgeon v. United Kingdom, 45
Eur. Ct. H.R. (ser. A) para. 13 (1981); Roper v. Simmons, 543 U.S. 551, 575-578 (2005)
(noting the abolition of the death penalty for children by "other nations that share our Anglo-
American heritage, and by the leading members of the Western European community," citing
the 1948 abolition of the death penalty for children in Great Britain, and the eventual complete
abolition of the death penalty in Great Britain).

13. This exemplifies the cross-fertilization between judges of the supreme courts of many
countries that has become frequent. See ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 65,
103 (2004) (discussing both the frequent meetings of supreme court judges from different
countries, as well as the practice of such courts citing cases decided by courts of other
countries).

14. For example, in Roper v. Simmons, 543 U.S. 551 (2005), an amicus brief was filed on
behalf of the European Union and Members of the International Community. In Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), an amicus brief was filed on behalf of the European
Commission. In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), an amicus
brief was filed on behalf of the European Communities and their member States. In Sanchez-
Llamas v. Oregon, 126 S. Ct. 2669 (2006), an amicus brief was filed on behalf of the European
Union and Members of the International Community, as well as amicus briefs by the Republic
of Honduras and the Government of the United Mexican States. In Medellin v. Dretke, 544 U.S.
660 (2005), an amicus brief was filed on behalf of the European Union and Members of the
International Community. Moreover, in Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct.

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IND. INT'L & COMP. L. REv.

Third, European courts, particularly the European Court of Human
Rights, routinely confront privacy issues and have in some areas developed
extensive analysis of various constitutional rights in the context of a myriad of
factual situations.15 Accordingly, it is worthwhile to become familiarized with
those decisions. Whether the United States Supreme Court accepts or rejects
them, the value of a body of precedent governing over 800 million persons
cannot be overlooked.

Constitutionally-derived privacy law in the United States primarily deals
with privacy claims against the government.' 6 European law deals far more
extensively with privacy claims between individuals and/or business entities
(sometimes referred to as undertakings) at a supra-national level-that of the
European Union or the European Convention on Human Rights.

However, it is by no means universal that more protection is afforded to
private information in the European legal systems than in the United States.
For example, transcripts of telephone conversations obtained by police wire
taps involving significant public figures, such as former Italian President Craxi
and Prince Victor Emmanuel Ill, son of the last king of Italy, are routinely
published in newspapers long before any trial has commenced and regardless of
their relevance to particular criminal allegations.17

2466 (2003), not only was an amicus brief filed on behalf of the European Communities, a
motion was made and granted to permit an attorney to present oral argument before the United
States Supreme Court as amicus curiae, a privilege ordinarily only accorded to the Solicitor
General of the United States. In F. Hoffinan-LaRoche Ltd. v. Empagran, 524 U.S. 155 (2004),
separate amicus briefs were filed on behalf of The Federal Republics of Germany and Belgium,
Canada, Japan, the United Kingdom, Northern Ireland and Ireland, and the Kingdom of the
Netherlands. In Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), separate amicus briefs were filed
on behalf of 422 current and former members of the United Kingdom and European Parliaments
and on behalf of 304 United Kingdom and European Parliamentarians. In Kansas v. Marsh, 126
S. Ct. 2516, 2533 n.3 (2006), Justice Scalia concurred, but while doing so cited a website of the
Delegation of the European Commission to the U.S.A. Justice Scalia also noted that the
Supreme Court cited a brief filed for the European Union as amicus curiae in a previous case.
See Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).

15. In a previous article, I argue the United States should acknowledge the European
Court of Human Rights case law, partly because it is the highest volume human rights court
currently deciding cases in the world. Conversely, the United States Supreme Court decides
only a tenth of the number of cases decided by the ECHR. Of course, most of the decisions by
the Supreme Court are not human rights decisions in the ordinary sense of the term. See, Allen
E. Shoenberger, Messages from Strasbourg: Lessons for American Courts from the Highest
Volume Human Rights Court in the World - The European Court of Human Rights, 27
WHrMrER L. REV. 357 (2005).

16. The right to be let alone dates back to the seminal article by Warren and Brandeis,
which concerned actions by the government invading and individual's privacy. Samuel D.
Warren & Louis D. Brandeis, The Right to Privacy, 4 HARv. L.REv. 193 (1890). See Richard C.
Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered
Constitutional Right to Informational Privacy, 10 N. ILL. U.L. REV. 479 (1990).

17. Craxi v. Italy, App. No. 25337/94, 38 Eur. H.R. Rep. 47, 1025 (2004) (section 30 of
the decision includes extracts of wiretap conversations published in the press); Peter Popham,
The Prince and the Prostitutes, THE INDEPENDENT, June 22, 2006, at 1 available at (describing
that transcripts of wiretaps of Prince Victor Emmanuel had been filling Italy's daily papers
about this key figure at the center of a squalid tangle of vice and greed)

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Because of the importance of privacy issues to U.S. citizens and
businesses, exemplified by the possibility of $2 million to $4 million dollar
fines for a single airplane flight, understanding the sharp differences as well as
agreements between European and U.S. privacy law is vitally important to
American lawyers and businesses.

This Article will explore those differences and similarities, emphasizing
the jurisprudence of the highest European courts having jurisdiction over
privacy disputes, the ECJ and the European Court of Human Rights (ECHR),
and the applicable statutory and treaty law of the European Union and Council
of Europe. Particular attention will be paid to the privacy of telephones, homes,
offices, computers, and data protection. A number of these differences may
suggest or require legislative solutions in the United States, as well as a re-
analysis of the U.S. approach to the protection of private data and privacy in a
general sense.

THE PASSENGER DATA PROTECTION CASE

The dispute reflected in European Parliament v. Council of the European
Union relates to measures taken by the United States subsequent to and as a
result of the tragic events of September 11, 2001.18 In November 2001, the
United States enacted legislation requiring air carriers operating flights to, from,
or across U.S. territory to provide U.S. customs authorities with electronic
access to data contained in their automated reservation and departure control
systems, referred to as Passenger Name Records (PNR). 19 The data consists of
between thirty and sixty fields of information, including simple data such as
names.20 Additionally, certain fields could be used to reveal information about
a passenger's religious affiliation, such as those fields indicating whether a
passenger has ordered a kosher or halal meal.2'

The Commission of the European Union negotiated with the United
States regarding the disclosure of PNR data and eventually reached an
agreement approved on May 14, 2004. The agreement was also approved by

22the European Union Council of Ministers on May 17, 2004. However, the
European Parliament declined to accept this decision and commenced litigation
before the European Court of Justice, alleging a number of deficiencies,
including:

1. The Commission decision was ultra vires because the subject matter

http://news.independent.co.uk/europe/article1094703.ece.
18. Cases C-317/04 and C-318/04, Eur. Parliament v. Council of the Eur. Union and the

Comm'n of the Eur. Cmtys., 2006 E.C.R. 1-4721, 33. This was a grand chamber decision,
comprised of the Presidents of all the Chambers of the Court and six additional judges.

19. Id.
20. Henry Farrell, Airline Passenger Data Dispute Is Merely "An Internal EU Dust-Up,"

June 7, 2006 http://www.cfr.org/pulication/10895/.
21. Id. Thus, whether a passenger is Jewish or Muslim may be detected.
22. Eur. Parliament, 2006 E.C.R. 1-4721, 1 43.

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IND. INT'L & COMP. L. REv.

was outside the competence of European Community law; 23

2. It did not matter that the data was to be transferred by private airline
carriers, which are covered by the provisions of the European
Directive on the Protection of Individuals with regard to the
Processing of Personal Data;24

3. Violation of Article 8 of the European Convention on Human
Rights; 25 and

4. Other claims, including the principle of proportionality, the
requirement to state reasons, and the principle of cooperation in
good faith. 6

The ECJ held, in short, that the entire area subsumed by the agreement
between the United States and the Commission of the European Union was
beyond the competence of the Commission and Council.27 The Court noted
that, although airlines were sharing the data, and not European governments,
the airlines remained subject to European law.28 The remaining issues were left
to future litigation.

The Court reasoned, that the directive forming the base of European
Union privacy law excludes data concerning "public security, defense, State
security, and the activities of the States in areas of criminal law" from its

29coverage. Presumably, the reason for these exclusions relates to the limited
transfer to central EU institutions of sovereign power by the twenty-seven states
that collectively form the EU. The justification for sharing PNR data was
explicitly for state security; more particularly, for "preventing and combating
terrorism and related crimes, other serious crimes, including organized crime,
that are transnational in nature, as well as flight from warrants or custody for
these crimes. 3°

In theory, it is possible for the twenty-seven members of the EU to
negotiate separate agreements with the United States to "solve" this competence
problem. 3' All of the other issues raised by the European Parliament, however,
remain unresolved. In particular, two serious issues remain undecided. First is
whether the essence of the PNR agreement violates Article 8 of the European

23. Id. [51.
24. Id. IN 57-58.
25. Id. 162.
26. Id.
27. Id. (H 60-61.
28. Id. 58. The fact that the "PNR data have been collected by private operators for

commercial purposes and it is they who arrange for their transfer to a third country... The
transfer falls within a framework established by the public authorities that relates to public
security." Id.

29. Id. 54 (citing Council and Parliament Directive 95/46, art. 3(2), 1995 O.J. (L281)
(EC)) (concerning the protection of individuals with regard to the processing of personal data
and the free movement of such data and its subsequent amendments).

30. Id. 55-56.
31. Henry Farrell made precisely this suggestion and characterized the dispute as "an

internal EU dust-up." See Farrell, supra note 21.

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PRIVACY WARS: EU VERSUS US

Declaration of Human Rights. Separate agreements with the current
governments of twenty-seven countries cannot resolve this issue. The ECHR
stands above the constitutions of these countries and reflects the agreement of
forty sovereign nations, including many of whom are not EU member states.32
Second, assuming agreements are made with the United States, would the
agreements themselves violate the scheme of protection established for personal
data by the EU Directive protecting such data? If the agreements do violate
that scheme, what are the consequences? Would the ECJ or the ECHR find
such violations sufficient to vitiate any agreement, which is not completely
consistent with the requirements of the EU directive on personal data
protection?

The complex structure of the EU Directive on personal data must be
examined before any of these questions can be answered. For purposes of the
Directive, "personal data" means any information relating to an identified or
identifiable natural person.33 Personal data must be: (a) processed fairly and
lawfully; (b) collected for specified, explicit, and legitimate purposes and not
further processed in a way incompatible with those purposes; (c) adequate,
relevant, and not excessive in relation to the purposes for which they are
collected and/or further processed; (d) accurate and up to date; and (e) kept in a
form that permits identification of data subjects for no longer than is necessary
for the purposes for which the data was collected or for which they are further
processed.34

Processing of personal data is subjected to a series of conditions: (a) the
data subject must have unambiguously given his consent; (b) processing must
be necessary for performance of a contract to which the data subject is party; (c)
processing must be necessary for compliance to which the controller is subject;
(d) processing must be necessary to protect the vital interests of the data
subject; (e) processing must be necessary for the performance of a task carried
out in the public interest or in the exercise of official authority vested in the
person controlling the data or a third party to whom the data is disclosed; or (f)
processing must be necessary for the purposes of the legitimate interests
pursued by the controller or third party to whom the data is disclosed, except
where such interests are overridden by the interests of fundamental rights and
freedoms of the data subject requiring protection under Article 1.35

32. Russia and Turkey, for example, are members of the Council of Europe but not the
EU. See The Council of Europe's Member States, http://www.coe.int/T/E/
Con/About-Coe//Member-statesdefault.asp (last visited Mar. 28,2007); European Countries,
http://europa.eu/abc/europeancountries/index-en.htm (last visited Mar. 28, 2007).

33. Council & Parliament Directive 95/46, art. 2(a) 1995 O.J. (L281) (EC) An identifiable
person is one who can be identified directly or indirectly by reference to an identification
number or to one or more factors specific to his physical, physiological, mental, economic,
cultural or social identity. Id.

34. id. art. 6.
35. Id. art. 7. Article 1 provides:

1. In accordance with this Directive, Member States shall protect the

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IND. INT'L & COMP. L. REv.

Certain types of data generally may not be processed, including data
revealing racial or ethnic origin, political opinions, religious or philosophical
beliefs, trade union membership, and data concerning health or an individual's
sex life.36 Several exceptions apply, such as when the data subject gives
explicit consent to the processing of the data, unless the state's laws provide
such consent is invalid.37 The most significant exception for PNR data
purposes is contained in Article 8, Section 4: "Subject to the provision of
suitable safeguards, Member States may, for reasons of substantial public
interest, lay down exemptions in addition to those laid down by Article 8(2). "38

It is further required that the data subject be provided information,
including: (a) the name of the person controlling the data; (b) the purpose of
processing the data; and (c) recipients or categories of recipients of the data,
whether replies to questions are voluntary and the consequences of failing to
reply, as well as the existence of a right to access the data and to rectify errors
concerning the data subject.39

Article 13 of the Directive permits EU Member States to adopt legislative
measures to restrict the scope of obligations under the Directive, including
disclosure obligations, when such a restriction constitutes a measure necessary
to safeguard: (a) national security; (b) defense; (c) public security; (d)
prevention and prosecution of criminal offenses or ethical breaches for
regulated professions; and (e) enumerated important economic or financial
interests of the Member States.40

This scheme of data protection suggests that the degree of governmental
limitation placed on the processing, collection, and use of personal data in the
EU is both considerably more detailed and based on a different approach from
that prevalent in the United States. In particular, the EU system requires that a
data subject give specific approval prior to the collection and/or processing of
personal data. The approach within the United States is quite different;,
individuals have the ability to opt out of the data collection system, however, if
they choose not to consent is implied. The approaches are referred to as "opt
in" versus "opt out" systems.4'

A second way in which the EU scheme differs from the United States is
that the use of private data is seriously curtailed. Information divulged by a
data subject is to be employed solely for the purpose for which the data subject

fundamental rights and freedoms of natural persons, and in particular their right
to privacy with respect to the processing of personal data.
2. Member States shall neither restrict nor prohibit the free flow of personal data
between Member States for reasons connected with the protection afforded under
paragraph 1.

36. id. art. 8.
37. Id. art. 8(2)(a).
38. Id. art. 8(4).
39. Id. art. 10.
40. Id. art. 13. These enumerated measures include monetary, budgetary, and taxation

matters. Id.
41. See Caroline 0. Shoenberger, Consumer Myths v. Legal Realities: How Can

Businesses Cope?, 16 LoY. CONSUMER L. REV. 189, 198-99 (2004).

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PRIVACY WARS: EU VERSUS US

provides the information, in the absence of explicit permission stating
otherwise.42 It is quite common in the United States for personal information to
be employed for purposes beyond the immediate transaction. For example, a
purchaser of an expensive car might have themselves identified as a "Rodeo
Drive Chic ' 43 consumer to other businesses also interested in marketing high-
end value merchandise. 44 Such disclosures are prohibited by the EU Directive.

Moreover, the EU Directive mandates that personal data be retained only
for the period of time necessary for the purpose for which the data was shared.45

For example, once an airline ticket is used, with the exception of a period of
time for possible financial disputes, maintaining the associated personal data on
file would likely be impermissible. No such temporal limitation exists in the
United States.

What are the implications of these requirements for any revised PNR
agreement on a country-by-country basis with the United States? Can they be
complied with, or do they present a serious obstacle to any further agreement?
Presumably, no airline passenger willingly gives the airline personal data
possibly subjecting them to criminal prosecution. Nor do they unambiguously
give their consent to such use as required by Article 7 of the Directive.46 It is
unclear whether Article 7's alternative grounds for permission of processing
data grant blanket permission for such disclosures.47 Consideration of decisions
by the ECHR relating to privacy rights is necessary before these questions may
be answered. Accordingly, we will turn to the jurisprudence of that court.

PRIVACY OF TELEPHONE COMMUNICATIONS: CASE LAW

The privacy of telephone conversations48 is analyzed under Article 8 of

42. See Council & Parliament Directive 95/46, art. 7, 1995 O.J. (L281) (EC).
43. This is a term employed by American Express Company to categorize its customers.

See Dwyer v. American Express, 652 N.E.2d 1351, 1353 (I11. App. Ct. 1995).
44. See id. See also Shoenberger, supra note 41 at 196 (not tortious appropriation to sell

or rent personal data broken down by economic strata).
45. See Council & Parliament Directive 95/46, art. 6, 1995 O.J. (L281) (EC).
46. See id. art. 7(a).
47. It is unclear, for example, whether processing the data by transmission to the United

States is necessary for a legal obligation to which the data controller is subjected within the
meaning of Article 7(b). The European Parliament presented various pleas for invalidation of
the agreement that were not reached by the ECJ. These pleas included allegations that the
agreement with the United States violated fundamental principles of the Directive, breached
fundamental rights, including those covered by Article 8 of the European Convention on Human
Rights, and breached the principle of proportionality. Cases C-317/04 and C-318/04, Eur.
Parliament, v. Council of the Eur. Union and Comm'n, 2006 E.C.R. 1-4721, 9 50, 62.

48. Telephone calls made from or to business premises, as well as to and from the home,
are covered by the notions of "private life" and "correspondence" within the meaning of art.
8(1). See Huvig v. France, 12 Eur. H.R. Rep. 528 (1990) (warrant covered both business and
personal telephone calls); Kopp v. Switzerland, App. No. 23223/94,27 Eur.H.R.Rep. 91(1999)
(private and professional telephone lines tapped); Halford v. United Kingdom, App. No.
20605/92, 24 Eur.H.R.Rep. 523 (1997) (home and office telephones tapped); MM v.

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IND. INT'L & COMP. L. REV.

the European Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention).49 Article 8, entitled "Right to Respect for
Private and Family Life," provides:

(1) Everyone has the right to respect for his private and family
life, his home and his correspondence.

(2) There shall be no interference by a public authority with
the exercise of this right except such as in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.5 °

At first glance the guarantee of respect in Article 8, Section 1, appears to
be vitiated by the broad exceptions of Section 2. ECHR case law, however,
demonstrates that the opposite is correct. Only after intense scrutiny is
surveillance of telephone conversations by a government or private individual
permissible under the European Convention. 51

The ECHR analyzes privacy cases in a five step process. First, the Court
determines if there is an interference with private life. Second, the Court
determines if the interference was by a public authority. Third, the Court
determines if the interference was justified, in that it must be in accordance
with the law, the law must be accessible to the individual, there must be
protections against arbitrary interference by public authorities, and the law must
be sufficiently precise. Fourth, the Court determines whether the interference
occurred for a proper public purpose. Finally, the Court determines that the
purpose is necessary in a democratic society. 52

Application of Article 8

The ECHR has established that telephone calls made from or to business
premises or the home are covered by the notions of "private life" and
"correspondence" within the meaning of Article 8(1). 53 Indeed, a police cell is
also considered a private place for purposes of the European Convention.54

Netherlands, App. No. 39339/98, 39 Eur. H.R. Rep. 19 (2004) (police encouraged woman to
record conversations on her phone to corroborate allegations that sexual advances were being
made towards her via telephone).

49. European Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 8, Sept. 3, 1953, 213 U.N.T.S. 222 [hereinafter European Convention].

50. Id.
51. See infra notes 53 - 125 and accompanying text.
52. See, e.g., Halford, 24 Eur. H.R. Rep. at 523.
53. Huvig, 12 Eur. H.R. Rep. at 528; Miailhe v. France, App. No. 12661/87, 16 Eur. H.R.

Rep. 332, 332 (1993) (offices and house searched for documents; 15,000 documents seized).
54. Wood v. United Kingdom, 636 Eur.Ct.H.R. (2004) 12, 33 (audio taping).

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Similarly, Community Cable Television (CCTV) films of a person on a public
street55 also implicate privacy interests, at least insofar as the videotapes or still
pictures therefrom are published in newspapers or television news programs
(including in one instance national British Broadcasting Corporation

56coverage). Even telephone calls on an internal police department phone
network are protected as private.57 Similarly, intercepting phone numbers sent
to a pager may violate Article 8,58 as can the accidental recording of a
conversation on someone else's telephone. 9  In short, virtually any
conversation on any telephone system is covered by the Article.

Interference by a Public Authority

Private persons who record telephone conversations at the request of the
police implicate the Convention; such recording "engage[s] the responsibility of
the state." 6 To allow private parties to conduct such investigations would "be
tantamount to allowing investigating authorities to evade their responsibilities
under the Convention by the use of private agents. 61

Such treatment mirrors the development of the "state action" doctrine in
the United States.62 The appearance of public authority may be sufficient to
implicate the protection of the Fourteenth Amendment's Equal Protection
clause. For example, in Burton v. Wilmington Parking Authority,6 1 the United

55. The person was contemplating suicide, and within a few moments attempted to cut his
wrists. Peck v. United Kingdom, App. No. 44647/98, 36 Eur. Ct. H.R. 41, 10 (2003).

56. Id. 13-20.
57. Halford, 24 Eur.H.R.Rep. at 524.
58. Taylor-Sabori v. United Kingdom, App. No. 47114/99,36 Eur.H.R. Rep. 17, 1N 16-19

(2003).
59. Kruslin v. France, App. No. 11801/85, 12 Eur. Comm'n H.R. Dec. & Rep. 547,455-

59 (1990). In Kruslin, an individual was staying with a criminal suspect whose calls were being
tapped as part of a police investigation into a murder. The person being recorded talked about a
separate murder. Id. H 9-10. The individual was charged with murder, aggravated theft, and
attempted aggravated theft. See also Lambert v. France, App. No. 23618/94, 30 Eur. Ct. H.R.
346, 351 (2000) (target of investigation entitled to complain about tapping a third party's
telephone line).

60. MM v. Netherlar. I;, App. No. 39339/98, 39 Eur. Ct. H.R. 19, at in 41-42. Although
initial suggestion of recording the conversation was made by private party, "the police
superintendent made a crucial contribution to executing the scheme by making available for a
short time his office, his telephone, and his tape recorder." Id. 138 (quoting A v. France, App.
No. 14838/89, 17 Eur. H.R. Rep. 462, 477 (1994)).

61. MM, 39 Eur. H.R. Rep. at 422.
62. State action is normally required to find the Due Process and Equal Protection clauses

of the Fourteenth Amendment applicable. See Shelly v. Kraemer, 334 U.S. 1 (1948); United
States v. Stanley, 109 U.S. 3 (1883). Contra Marsh v. Alabama, 326 U.S. 501 (1946) (First
Amendment applies to town completely owned by a private company; distribution of religious
literature could not be criminalized).

63. 365 U.S. 715 (1961) (acknowledging that state and national flags were flying on the
building and rent from the coffee shop was necessary to make the public garage a viable
economic enterprise for the Wilmington Parking Authority were factors in making the coffee
shop a state actor). In Burton, the Court articulated a test for state action that requires that facts

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IND. INT'L & COMP. L. REv.

States Supreme Court held that a private coffee shop located in a public garage
was subject to the limitations of the Fourteenth Amendment when it refused to
serve black customers.

JUSTIFICATION IN ACCORDANCE WITH THE LAW

The scrutiny with which courts review an interference with privacy is
quite strict. Ordinarily, explicit textual authorization is required by the
applicable domestic legal system, however, the ECHR has recognized that
adequate policy strictures may suffice. For example, at the time when MM v.
Netherlands was decided, Dutch law presupposed that a preliminary judicial
investigation and order by an investigating judge was necessary to authorize
tapping or interception of "telecommunications" traffic. In MM, police
suggested to a woman that she record telephone conversations with her
husband's lawyer in order to prove allegations that the lawyer was making
sexual advances toward her. Because no judicial oversight had been exercised
in MM, these conditions failed. The Court held private tapping of telephone
calls between the lawyer and his client's wife violated the lawyer's privacy
rights even though the lawyer made sexual advances. 64

In Kruslin v. France, the ECHR required that a law authorizing tapping
had to be particularly precise, with clear, detailed standards. 65 In that context,
however, enactments, which rank lower than statutes, and unwritten law may
suffice as justifications.66 But, even France admitted that seventeen safeguards
implemented in French law and practice were inadequate and not "particularly
precise enough., 67 While some of these safeguards were established in both
written and case law, not all were so established. In some instances only a
practice lacking the necessary control was established.68 The system did not
have adequate protections against possible abuse. For example, categories of
those people able to have telephones tapped by judicial order were not
specified, nor were the nature of offenses that could justify such an order.69

Also unspecified were the procedures for drawing up summary reports
containing intercepted conversations, the precautions taken to communicate the
recordings accurately and completely for judicial inspection, the circumstances
in which tapes could be erased or destroyed (particularly when an accused has
been discharged or acquitted by the court), or any limitation upon the duration

and circumstances be sifted and weighed to determine if there is an adequate connection
between the private and public actors to hold the private action tantamount to state action. Id. at
723.

64. MM, 39 Eur. H.R. Rep. at 422. Press reports of the case induced two other women to
complain of rape or sexual assaults. Id. at 416.

65. Kruslin v. France, App. No. 11801/85, 12 Eur. Comm'n H.R. Dec. & Rep. 451,458
(1990).

66. Id. at 457. In particular, case law may be adequate. Id.
67. Id. at 456.
68. Id. at 458.
69. Id.

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of the tapping. 70 The court concluded that French law did not indicate with
reasonable clarity the scope and manner of relevant discretion conferred on the
relevant public authorities.7'

In contrast to French law, the United Kingdom applied no statutory
system regulating interception of pager messages.72 That practice was held
violative of Article 8 of the European Convention for the Protection of Human
Rights." Similarly, in Halford v. United Kingdom, interception of private
telephone calls on a private telephone network was violative of Article 8, since
there was no domestic regulation providing for public scrutiny or limitation of
abuse of discretion by public authorities.74

Domestic law must be sufficiently clear to provide an individual adequate
notice of the circumstances in which public authorities may listen to calls.75 In
particular, an individual must be able to understand the law so as to enable
them to regulate their own conduct.76 In Malone, the government contended
that the applicant, "a suspected receiver of stolen goods was a member of a
class of persons against whom measures of postal or telephone interception was
liable to be employed. 77  However, the court determined that the entire
regulatory scheme of interception in the United Kingdom did not indicate with
reasonable clarity the scope and manner of exercise of relevant discretion by
public authorities.78 Thus, the minimum degree of legal protection a citizen
was entitled to was lacking and therefore, constituted a violation of Article 8 of
the Convention.79

The Court was clearly concerned with narrowing the ambit of discretion
given to relevant officials, particularly with regard to interceptions that are
secret, either when conducted or subsequent to the activity.80 The Court was
terse in its treatment of "metering.' Metering records the time and duration of
phone calls as well as the numbers called; it was designed by the Post Office, as
the responsible entity for the provision of telephone services.82 The United
Kingdom government argued that such metering did not entail interference with

70. Id.
71. Id.
72. Taylor-Sabori v. United Kingdom, App. No. 47114/99, 36 Eur.H.R. Rep. 17, IN 16-19

(2003).
73. Id. 19.
74. Halford v. United Kingdom, App. No. 20605/92,24 Eur. H.R. Rep. 523,536 (1997).
75. Malone v. United Kingdom, App. No. 8691/79, 7 Eur. H.R. Rep. 14, 40 (1985).
76. Id.
77. Id. at 39.
78. Id. at 44.
79. Id. at 45. U.K. law was described as "somewhat obscure and open to differing

interpretations." Id. at 44. The court found a violation even though published statistics
indicated that the number of warrants granting authority to intercept was relatively low, while
the number of indictable crimes committed and telephones installed was rising. Id.

80. Id. at 32-33. At no point is a person informed that his communications had been
intercepted.

81. See id. at 34-35.
82. Id. at 45.

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IND. INT'L & COMP. L. REV.

any right guaranteed by Article 8, because the supplier of telephone service
necessarily obtains this data to enable it to properly charge (or bill) the
subscriber.83 No U.K. law regulated the disclosure of such data, and thus no
warrant was required to obtain it.84 The Post Office does, on occasion, make
such information available to the police when requested.

The Court, however, determined that such data did implicate private
information, and thus the unregulated provision of such information constituted
a violation of Article 8, because no regulation of the exercise of discretion by
public authorities existed. 6 One judge posits in a concurring opinion that he
would have gone even further:

The danger threatening democratic societies in the years 1980-
1990 stems from the temptation facing public authorities to
"see into" the life of the citizen. In order to answer the needs
of planning and of social and tax policy, the State is obliged to
amplify the scale of its interferences. In its administrative
systems, the State is being led to proliferate and then to
computerize its personal data-files. Already in several of the
members States of the Council of Europe each citizen is
entered on 200 to 400 data-files.

Telephone tapping has during the last thirty years benefited
from many "improvements" which have aggravated the
dangers of interference in private life. The product of the
interception can be stored on magnetic tapes and processed in
postal or other centres equipped with the most sophisticated
material. The amateurish tapping effected by police offices or
post office employees now exists only as a memory of pre-war
novels. The encoding of programmes and tapes, their
decoding, and computer processing make it possible for
interceptions to be multiplied a hundredfold and to be
analysed in shorter and shorter time-spans, if need be by
computer. Through use of the "mosaic" technique, a complete
picture can be assembled of the life-style of even the "model"
citizen.

Police interception for the prevention of crime is only one
of the practices employed; to this should be added political
interceptions, interceptions of communications of journalists
and leading figures, not to mention interceptions required by

83. Id. at 46.
84. See id. at 18.
85. Id. at 32.
86. Id. at 47.

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national defence and State security, which are included in the
"top-secret" category and not dealt with in the Court's
judgment or the present opinion.

•.. The designation of the collective institutions responsible
for ensuring the ex post facto control of the manner of
implementation of the measures of interception; the
determination of the dates of cancellation of the tapping and
monitoring measures, the means of destruction of the product
of interceptions, the inclusion in the code of criminal
procedure of all measures applying to such matters in order to
afford protection of words uttered in a private context or in a
private place, verification that the measures do not constitute
an unfair stratagem or a violation of the rights of the defence -
all this panoply of requirements must be taken into
consideration to judge whether or not the system satisfies the
provisions of Article 8.87

Other countries, such as Switzerland, also failed to adequately protect
privacy interests in telephone conversations. In Kopp v. Switzerland, the
ECHR found that tapping the telephone calls of a lawyer to seek information
regarding the lawyer's wife was not regulated by laws with adequate "quality"
to protect the privacy interests of the attorney and his clients.88 Even though
Swiss law protected the legal privilege, the actual administration of a wire tap
involved a Post Office official listening to all conversations on various
telephone lines at the lawyer's office, without independent judicial supervision
of the listening. "In short, Swiss law, whether written or unwritten, does not
indicate with sufficient clarity the scope and manner of exercise of the
authorities' discretion in the matter., 89 The Court further noted that "it is, to
say the least, astonishing that this task should be assigned to an official of the
Post Office's legal department, who is a member of the executive, without
supervision by an independent judge, especially in this sensitive area of the
confidential relations between a lawyer and his clients." 9

Warning that an interception might occur is part of the requirement of
legal regularity. For example, in Halford v. United Kingdom, failure to notify a
police officer that a telephone call on an internal telecommunications system
was intercepted violated the reasonable expectation of privacy otherwise

87. Id. at 49-53 (Pettiti, J., concurring). Considering the mute tone of most ECHR
opinions, this concurring opinion stands out in sharp contrast. It may, someday, play a role in
ECHR jurisprudence similar to that of the classic dissents by Justices Brandeis and Holmes in
American Constitutional Law.

88. Kopp.v. Switzerland, App. No. 23223/94, 27 Eur. H.R. Rep. 91, 117 (1999).
89. Id. at 94.
90. Id. at 117.

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IND. INT'L & COMP. L. REv.

applicable. 9' In the absence of any domestic law regulating interception of calls

made on systems outside the public network, the government accepted that it
had violated the requirement that any interference be in accordance with the
law.92 Without specific proof that her home telephone had actually been
tapped, however, the Court was unable to conclude that Article 8 had been
violated by intercepting calls on her home telephone.93

SURVEILLANCE AGAINST TERRORISM AND OTHER SERIOUS CRIME

In Klass v. Germany, the ECHR considered a secret government
surveillance program of written and telephone communications that dated back
to the Allied occupation of Germany after World War 11.94 The Court
considered sequentially whether the program was an interference with private
life (it was), 95 whether the program was in accordance with the law (it was), 96

whether the program was "necessary in a democratic society" (it was),9 7 and
most importantly, whether the system of surveillance adopted included
adequate safeguards against abuse.98 With regard to the inquiry concerning
adequate safeguards, the court indicated "[it was] aware of the danger such a
law pose[d] of undermining or even destroying democracy on the ground of
defending it, [and] affirm[ed] that the Contracting States may not, in the name
of the struggle against espionage and terrorism, adopt whatever measures they
deem appropriate. ' 99

The most rigorous portion of the ECHR analysis considered the details of
the oversight of the surveillance program to determine whether adequate
safeguards were in place. The surveillance program required a written
application listing the applicable reasons why surveillance was proper. The
program required that a set of limiting conditions be met before surveillance
could be permitted. The program was confined to cases in which there were
factual indications to suspect a person of planning, committing, or having
committed certain serious criminal acts; measures could only be ordered if the
establishment of facts by another method was without prospects of success or
considerably more difficult, and even then the surveillance could cover only the

91. Halford v. United Kingdom, App. No. 20605/92,24 Eur. H.R. Rep. 523,524(1997).
The Assistant Chief Constable had sole use of her office telephones, one of which was
designated for her private use. She had also been explicitly told she could use the phone in
connection with her sex-discrimination case. Id. at 524.

92. Id. at 533-34.
93. Id. at 536-37. The Court awarded petitioner 10,000 British pounds asjust satisfaction

for the serious interference with her privacy, along with 600 pounds for attending the
proceedings in Strasbourg, and costs of 25,000 pounds. Id. at 523.

94. Klass v. Germany, App. No. 5029/71, 2 Eur. H.R. Rep. 214, 220 (1980).
95. Id. at 229.
96. Id. at 231 (as modified by a (German) Federal Constitutional Court decision).
97. Id.
98. Id. at 232.
99. Id.

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specific suspect or his presumed "contact-persons." ° Exploratory or general
surveillance was not permitted.' 0' Further, only certain named officials could
approve such surveillance, including Federal Ministers designated by the
Chancellor, or where appropriate, the supreme Land authority. 10 2 Additionally,
although not required by law, the competent Minister in practice, except in
urgent cases, could seek the prior consent of the G 10 Commission. 10 3

The G 10 Commission has provided strict limitations on the
implementation of surveillance measures and the use of gathered information.
Permission lasts a maximum of three months, after which a new application is
necessary.l°4 Once the conditions for the surveillance terminate, so must the
surveillance. 0 5 Knowledge and documents obtained through surveillance may
not be used for any purpose other than the original reasons listed in the
application, and documents must be destroyed once they are no longer needed
for their original purpose. 1 6 During implementation of surveillance, a person
qualified for judicial office must exercise initial control, which includes
examination of the information before it is transmitted to the requesting service
The receiver of the information must destroy any superfluous data. 10 7

Recourse to the courts is precluded during implementation as well as execution
of surveillance itself; however, the option for subsequent direction is
provided.1

08

During surveillance, the competent Minister reports every six months to a
Board consisting of five members of Parliament. The Minister reports any
measures taken to the G 10 Commission on a monthly basis. In practice, the
Minister seeks prior authorization from the G 10 commission. 109 The members
of the Commission are appointed for the term of the parliament, "are
completely independent ... and cannot be made the subject of instructions."' 1U °

The Court concluded that the review system implemented before and
throughout the surveillance process did not exceed what is necessary in a
democratic society.'

After surveillance has ended, judicial control is possible under the
requirement of the German Federal Constitutional Court's judgment of

100. Id. at 233.
101. Id.
102. Id. at 243.
103. Id. at 233. The G 10 Commission is a parliamentary oversight commission appointed

in proportion to parliamentary representation, but it always includes a member of the opposition
party. Id. at 222.

104. Id. at 214.
105. Id. at 221.
106. Id. at 233.
107. Id.
108. Id.
109. Id. at 221.
110. Id. at 222.
111. Id. at235.

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IND. INT'L & COMP. L. REv.

December 15, 1970.' 12 That decision requires that the subject of the
surveillance be notified as soon as notification can be made without
jeopardizing the purpose of the surveillance.1 13 The Minister must consider
such communication immediately after surveillance has been terminated, and, if
necessary, at regular intervals thereafter, reporting his decisions to the G 10
Commission on a regular basis.' 14 The G 10 Commission may then order the
Minister to inform the subject. 115

The ECHR considered these measures. In the absence of evidence to the
contrary, the ECHR assumed that the relevant authorities were "properly
applying the legislation in issue."116 The Court agreed with the Commission
that some compromise between the requirements for defending democratic
society and individual rights is inherent in the system of the Convention." 17 The
Court then balanced the legislation against the individual right to privacy and
concluded that the provisions were appropriate in a democratic society to
further the interests of national security and prevention of crime.18

The Court next considered whether there were adequate remedies in
German law for dealing with secret surveillance. The Court held that although
"there can be no recourse to the courts in respect to the ordering and
implementation of restrictive measures, certain other remedies are nevertheless
open to the individual believing himself to be under surveillance."' 19 After
notification, various legal remedies are available before the courts, including
civil damages and remedies for destruction of documents, as well as resort to
the Constitutional Court.120  The Court concluded, "in the particular
circumstances of this case, the aggregate of remedies provided for under
German law satisfies the requirements of Article 13 [of the Convention]. 121

It is clear from Klass that the ECHR considered each and every restriction
under German law in making its decision, including, in particular, the
subsequent notification requirement, Ministerial supervision, and the
supervision on a regular basis of the G 10 Commission. It is impossible to say
whether the absence of one or more of the procedures would have resulted in a
different outcome, but it is reasonable to assume most of the requirements were
absolutely necessary.

Accordingly, it is necessary to consider the short, separate opinion of

112. Id. at 221.
113. Id.
114. Id. at 214.
115. Id.
116. Id. at 237.
117. Id.
118. Id.
119. Id. at 240. These include complaining to the G 10 Commission and to the

Constitutional Court. Although these were limited remedies, the Court opined, "it is hard to
conceive of more effective remedies being possible." Id.

120. Id. at 240-41.
121. Id. at 241. Article 13 requires that domestic law provide a remedy for violation of a

right under the European Convention. Id.

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Judge Pinheiro Farinha. Judge Farinha declared the entire scheme, including
its mere existence, is a "real threat" to private and family life. 122 He expressed
difficulty accepting that such surveillance measures can be ordered by political
authority itself.123 The oversight of the G 10 Commission, as well as the
supervision of an independent judge (as contemplated by the German law),
were essential protections. 24 In this case, however, because there were
representations by the Government that none of the applicants had been the
subject of surveillance or had surveillance ordered, it does not disclose a
violation of the Convention. 125

The surveillance program conducted in the United States by the Bush
administration stands in sharp contrast to the intense review of the German
surveillance program by the ECHR, with its repeated noting that politics not be
involved in the German surveillance. This program has been employed by the
Bush administration as a political wedge against the Democrats. 126 It has been
reported that a Justice Department official refused to approve the program
because of doubts about its legal and constitutional basis and whether adequate
oversight existed. 127

122. Id. at 242 (Farinha, J., separate opinion).
123. Id.
124. Id.
125. Id.
126. See Adam Nagoumey, Seeking Edge in Spy Debate, N.Y. TuEs, Jan. 23,2006, at Al.

[T]he White House... views its controversial secret surveillance program not as
a political liability but as . . . a way to attack Democrats and re-establish
President Bush's standing after difficult year.

Democrats-and ... some Republicans, too-have indeed challenged the
administration for eavesdropping without obtaining warrants. They argue,
among other points, that the White House is bypassing legal mechanisms
established in 1978 that already allow law enforcement agencies to move rapidly
to monitor communications that might involve terrorists.

Id. See also Shane, supra note 5:
Senate Democrats on Thursday angrily accused the Bush administration of

mounting a public relations campaign to defend the National Security Agency's
domestic surveillance program while withholding details of the secret
eavesdropping from Congressional oversight committees.

President Bush approved the eavesdropping without warrants shortly after
the 2001 terrorist attacks, but since the program's existence was revealed in
December [2005] by The New York Times, some legal experts and members of
Congress have asserted that it violates the Foreign Intelligence Surveillance Act.

Id.; David Cole & Martin S. Lederman, The National Security Agency's Domestic Spying
Program: Framing the Debate, 81 IND. L.J. 1355, 1355 (2005). The New York Times broke the
story on December 16, 2005, reporting that it had delayed publication of the story for more than
a year. Id.

127. Eric Lichtblau & James Risen, Justice Deputy Resisted Parts of Spy Program, N.Y.
TIMES, Jan. 1, 2006, at 1. Attorney General Ashcroft, from his hospital bed, also was reluctant
to approve the program, although it remained unclear whether he ultimately approved the
program or whether the administration went forward without his approval. See id. See also

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IND. INT'L & COMP. L. REv.

There is, in fact, a federal statute, the Foreign Intelligence Surveillance
Act (FISA), 28 that provides for "extensive review and fixed accountability.' 29

The process for obtaining a warrant "required, first, that the head of the relevant
intelligence agency and the Attorney General 'certify personally' that the
purpose of the FISC application was to collect foreign intelligence, and second,
that a judge sign the order authorizing the surveillance.' 130 It appears that
FISA, as originally framed, would satisfy the ECHR through its inclusion of
judicial oversight, although no provision for notice of surveillance targets
similar to that required by the German Constitutional Court is included.13 1

Broad standing rules in both the United States and European Union allow
challenges by an individual whose phone has been tapped based upon policies
of strict regulation and monitoring of such programs. According to the ECHR,
each person recorded by a wiretap has standing to contest its legality. 32 In
Lambert v. France, the complaint originally rejected by French courts had been
raised by a person whose phone was not being tapped. 133 The ECHR's broad
view of standing brought French law into alignment with U.S. law. In
Alderman v. United States, the Supreme Court recognized the standing of a
defendant to challenge if either he is a party to the conversation or the
conversation took place on his premises.' 34

Programmatic challenges, however, are treated differently in the

Sanford Levinson, The Deepening Crisis of American Constitutionalism, 40 GA. L. REV. 877,
888 (2006) ("[Tihe National Security Agency (NSA) surveillance of phone calls of American
citizens, undertaken without a scintilla of judicial approval, and by the Bush Administration's
defense of the surveillance in spite of legislation, the [FISA], that seems quite clearly to make it
illegal.") (footnote omitted); see generally Katherine Wong, The NSA Terrorist Surveillance
Program, 43 HARv. J. ON LEGIS. 517 (2006).

128. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783
(codified as amended at 50 U.S.C. §§ 1801-11, 1821-29, 1841-46, 1861-62).

129. Diane Carraway Piette & Jesselyn Radack, Piercing the "Historical Mists": The
People and Events Behind the Passage of FISA and the Creation of the "Wall," 17 STAN. L. &
POL'Y REv. 437, 460 (2006).

130. Id. at 460.
131. See id. at 486.

FISA was a compromise forged in the fires of controversy created by
Watergate, COINTELPRO, and the fifty-year litany of abuses meticulously
documented in the Church Committee Report. FISA was a compromise designed
to protect the American people from an overreaching, over-intrusive, and
unchecked government while still allowing the government to conduct vital
surveillance for foreign intelligence purposes with judicial oversight.... [I]t is
clear that the privacy concerns of American citizens and Congress then are just as
valid today.

Id.
132. Lambert v. France, (2000) 30 Eur. H.R. Rep. 346, 349.
133. Id. at 354. The complaint alleged that an extension of wiretap authorization was

obtained by standard form written instructions without particularized justifications. Id. Even
though the complainant was charged with handling the proceeds of aggravated theft, held in
custody over 6 months, and released subject to judicial supervision, the ECHR awarded him
10,000 francs in non-pecuniary damage, along with costs of 15,000 francs. Id.

134. Alderman v. United States, 394 U.S. 165, 197 (1969) (Fortas, J., concurring in part
and dissenting in part).

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European Union than the United States. In Klass, the Court held that the mere
possibility one could have been tapped permitted one to challenge the
surveillance program itself. 135 No allegation that surveillance measures had
been applied was required.

Conversely, the U.S. Supreme Court has applied a more restrictive
standing test in denying the right of citizens to challenge the infamous
COINTELPRO surveillance program, which requires that actual injury be
demonstrated by a litigant. 136 Thus, the allegation that one had their own
phone tapped does not suffice for a systemic challenge in the United States. 137
Actual harm in some concrete form must be demonstrated, not merely the

possibility that one's free speech might be chilled by a surveillance system. 138

PROTECTION OF PLACES AGAINST SURVEILLANCE

Although most of the aforementioned cases and discussion focused on
ECHR decisions involving telephone and/or postal interceptions, many cases
have also dealt with the privacy of particular places, including the home, a
prison cell, and an office. The ECHR's general approach is similar to that
sketched out above; interferences with the rights to privacy are only permissible
if in accordance with the law.

For example, in Elahi v. United Kingdom,139 the Court considered the
installation of a listening device in a subject's home for purposes of detecting
heroin traffic. The subject was prosecuted with the recordings of detailed
discussions between the applicant and his co-accused, demonstrating
involvement in conspiracies to import and distribute drugs, including heroin. 140
The defendant absconded during trial, was convicted in absentia, and was
sentenced to twelve years imprisonment.14 ' When re-arrested several years
later, he appealed the original conviction and was rejected. 142

The Government, however, admitted before the ECHR that Home Office
Guidelines for such surveillance were neither legally binding nor publicly
accessible. Hence, the ECHR found there had been a violation of Article 8.143

In Wood v. United Kingdom, the Court considered audio tapes made in a

135. Klass v. Germany, App. No. 5029/71, 2 Eur. H.R. Rep. 214, 227 (1980). One is not
even required to allege surveillance measures were applied against him. Id.

136. Laird v. Tatum, 408 U.S. 1, 14 (1972).
137. Of course, a defendant in a criminal case ordinarily does have standing. See Peters v.

Kiff, 407 U.S. 493 (1972) (criminal defendant has standing to challenge exclusion of jurors of
different race).

138. Id. at 14.
139. Elahi v. United Kingdom,_App.No. 30034/04, 2006 WL 1994706. The listening

devices had been installed while the police executed a search warrant in connection with a car
theft case. Id.

140. Id. 8.
141. Id. I 10.
142. Id.I1l.
143. Id. 120.

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IND. INT'L & COMP. L. REV.

police cell while suspects were being held together in hopes that they might
reveal criminal activity.144 No statutes existed either permitting or prohibiting
such taping. 145 The applicant was convicted largely through the use of these
tapes and sentenced to eight years imprisonment.146 The court of appeals found
there had been a violation of Article 8 of the Convention, but dismissed the
appeal because the recording could still be relied upon as evidence. 147 The
court reasoned that as long as there was no unfairness or suggestion the
confessions were oppressively obtained or otherwise unreliable, they were
usable as evidence. 148 Because the Government had conceded there had been
no legal basis for the surveillance and that no effective remedy existed under
British law,149 the Court held the Convention was violated. 50 Earlier decisions
by the ECHR, including Khan v. United Kingdom15 1 and Allan v. United
Kingdom,' 52 reached similar results regarding police taping because no statutory
system existed to regulate the use of covert recording devices by the police.153

In Miailhe v. France, the court considered customs officers' seizure of
more than 15,000 documents from premises housing governmental head offices
and the Philippines consulate. 154 The Court held the wholesale seizures made
on the applicants' premises were indiscriminate, to such an extent that several
thousand documents seized had no relevance to the inquiries. 155 The Court
reasoned that granting customs authorities exclusive competence to assess the
expediency, number, length, and scale of inspections in the absence of a
judicial warrant did not afford adequate protections against abuse.' 56

144. Wood v. United Kingdom, App.No. 23414/02, [2004] Eur. Ct. H.R. 636.
145. Id. 112.
146. Id. T 15.
147. Id. 117.
148. Id. [ 20-21. The House of Lords refused to consider the case. Id. 22.
149. Id. T 32.
150. Id. $ 33.
151. Khan v. United Kingdom,_App. No. 35394/97, 31 Eur. H.R. Rep. 45 (2001). The

police had installed listening devices in the premises of a friend of the applicant. In audio
recordings, the applicant admitted that he had been involved in the illegal importation of drugs
by his cousin, who had arrived in the U.K. on the same plane as the applicant. Id. 9 10. The
applicant was convicted and sentenced to three years imprisonment. Id. 91 12. His appeal was
dismissed by the House of Lords, even though Lord Nolan, giving the opinion of the majority of
the House, stated:

The sole cause of this case coming to your Lordship's House is the lack of a
statutory system regulating the use of surveillance devices by the police. The
absence of such a system seems astonishing, even more so in view of the
statutory framework which has governed the use of such devices by the Security
Service since 1989, and the interception of communications by the police as well
as by other agencies since 1985.

Id. 114.
152. Allan v. United Kingdom, App. No. 48539/99, 36 Eur. H.R. Rep. 12 (2003).
153. Id. 136.
154. Miailhe v. France, App. No. 12661/87, 16 Eur. H.R. Rep. 332, 334 (1993).
155. Id. at 343.
156. Id.

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Ultimately, the initial prosecution was aborted because of subsequent changes
in the criminal law. 157 In a similar customs search case, Funke v. France,158 a
seizure of documents in a private home was deemed violative of Article 8
because the restrictions and conditions provided for by law "appear[ed] too lax
and full of loopholes for the interferences... to have been strictly proportionate
to the legitimate aim pursued."' 59

The ECHR has considered many cases involving searches and seizures of
homes. In Soini v. Finland,16 the Court considered the legality of searching the
homes of anti-fur demonstrators who were forcibly removed from a sit-in
demonstration at a department store.' 6' The demonstrators' homes were
searched; eventually, they were charged with criminal violations, including, in
several cases, defamation of a department store. 162 After convictions of various
offenses and sentences of forty, fifty, or sixty days, many convictions were
reversed on appeal and the remaining sentences were reduced to fines.' 63 Upon
review, the ECHR held that Article 8 had not been violated by the searches of
the demonstrators' homes, or by the brief seizure of a diary of one
demonstrator. 64 The searches were adequately justified under domestic law
and thus regarded as necessary in a democratic society. 65  The seizure,
however, of multiple copies of a pamphlet for evidentiary use was held not
adequately prescribed by law and hence a violation of Article 10 of the
Convention, which pertains to freedom of expression.166

157. Id. at 335.
158. Funke v. France, App. No. 10828/84, 16 Eur. H.R. Rep. 297, 312 (1993).
159. Id. Accord Cremieux v. France, App. No. 11471/85, 16 Eur. H.R. Rep 357 (1993)

(concerning searches and seizures in homes and office).
160. Soini v. Finland,_App. No. 36404/97, 2006 Eur. Ct. H.R.48.
161. Id. I7.
162. Id. 15.
163. Id. 23.
164. Id. 46. The diaries were seized on June 13, 1996; two were returned on June 26,

1996, the other September 9, 1996. Id. 13.
165. Id.
166. Id. 57. The applicants had contended that the police could have simply photocopied

the pamphlets and that seizure was unneeded. Id. Article 10 provides:
(1) Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This article
shall not prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or the rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.

European Convention, supra note 49, art. 10.

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IND. INT'L & COMP. L. REv.

In a more serious case, Elci v. Turkey, sixteen Turkish lawyers were
arrested, detained for varying periods, and subjected to torture. 167 During their
detention, five attorneys' homes and offices were searched and privileged
material taken. 168 The Court found no Government records existed limiting the
scope of the searches and seizures, and "the search and seizure measures were
implemented without any, or any proper, authorization or safeguards.' 69 No
search warrants had been issued by a prosecutor or judge, and no judicial
authority before or after the searches described the scope or purpose of the
searches.' 70 Thus, the Court held that Article 8 had been violated. 171

In one rather peculiar case, Chappell v. United Kingdom, a private search
authorized by an ex parte judicial order was challenged in the ECHR. 172 In
order to be granted such an order, the petitioner must have clearly demonstrated
to the court that his claim would succeed on the merits. In granting the order,
the Court noted "the potential damage is very serious for [the
petitioner/defendant], and there is clear evidence that the defendant has in his
possession incriminating documents or things, and that there is a real possibility
that, if he is forewarned, he may destroy such material."' 173 The petitioner was
then authorized to search the defendant's premises. 174

Similarly, in Chappell (which originated as a copyright action) 175 the
police obtained a search warrant for pornographic video films. 176 The warrant
on behalf of the copyright plaintiff and the police warrant were served together,
and the plaintiff and several policemen in plain clothes conducted the search. 177

Despite allegations that the simultaneous searches by the police and the
plaintiff were distracting, the Court did not find the searches disproportionate to
the legitimate aims pursued. 78

Although the petitioner's claims of invasion of privacy were rejected in
Chappell, it is important to note that the case was framed as a potential
violation of the Convention. 179 Rarely can individuals in the United States
successfully claim that purely private action constitutes a constitutional
violation.1

8 0

167. Elci v. Turkey, App. Nos. 23145/93 and 25091/94, Eur. Ct. H.R. 588 (2003).
168. Id. at 687.
169. Id. at 698-99.
170. Id. at 697.
171. Id. at 700. The Court also concluded that there had been torture of several of the

lawyers while in custody and ill-treatment of others that was sufficiently serious as to render it
inhuman and degrading within the meaning of Article 3 of the Convention. Id. at 646-47.

172. Chappell v. United Kingdom, App.No. 10461/83, 12 Eur. H.R. Rep. 1 (1989).
173. Id. at 5.
174. Id.
175. Id. at 8.
176. Id. at 8-9.
177. Id. at 10-12.
178. Chappell v. United Kingdom, App. No. 10461/83, 12 Eur. H.R. Rep. 22.
179. Id. at 17.
180. The state action requirement often arises as a constitutional impediment to actions

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Forcible police entry into a premises, even with a search warrant, has
been held to be a violation of the Convention. In Keegan v. United
Kingdom,'81 the police failed to make inquiries to discover that the target family
had moved out over six months previously.' 82 Although the police acted
without malice, the action was nevertheless an abuse of power. The Court
reasoned that the Convention protected against any abuse of power, however it
was motivated or caused. 83  Domestic law that conditioned recovery of
damages upon such malice' 84 was rejected as inadequate. 185

U.S. law regarding liability contrasts quite sharply with such holdings. A
combination of good faith defenses available to police officers, 186 along with
the restrictive implications of Monell v. Department of Social Services,' 87

frequently results in exculpating both individual officers as well as units of
local government from liability."' Thus, execution of search warrants in the
wrong house or apartment unit rarely creates liability unless the police officers
demonstrate some improper mental element, such as knowingly or recklessly

regarding equality or due process. See Shelley v. Kraemer, 334 U.S. 1 (1948); Moose Lodge
No. 107 v. Irvis, 407 U.S. 163 (1972); Jackson v. Metro. Edison Co., 419 U.S. 345 (1974).

181. Keegan v. United Kingdom, App. No. 28867/03, Eur. Ct. H.R. (2006).
182. Id. 33.
183. Id. 34.
184. Id. 19. Lord Justice Ward of the Court of Appeals in the United Kingdom stated,

while rejecting the appeal:
"That an Englishman's home is said to be his castle reveals an important

public interest, but there is another public interest n the detection of crime and
the bringing to justice of those who commit it. These interests are in conflict in a
case like this and on the law as it stood when these events occurred, which is
before the coming into force of the Human Rights Act of 1998, which may be
said to have elevated the right to respect for one's home, a finding of malice on
the part of the police is the proper balancing safeguard."

Id.
185. Id. 34.
186. Hope v. Pelzer, 536 U.S. 730, 736 (2002). Government officials performing

discretionary functions are entitled to qualified immunity so long as "their actions could
reasonably have been thought consistent with the rights they are alleged to have violated."
Anderson v. Creighton, 483 U.S. 635, 638 (1987). "Qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335,
344-45 (1986). See generally Harlow v. Fitzgerald, 457 U.S. 800 (1982) (objective
reasonableness of official's conduct by reference to clearly established law provides immunity);
Wilson v. Layne, 526 U.S. 603 (1999) (Qualified immunity allowed police to bring media
observers into defendant's home while executing arrest warrant, for although it was
unconstitutional to do so, that rule had not been clearly established at the time of the entry into
the house).

187. Monell v. Dept. of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978). Monell
exonerates a unit of local government from liability unless a policy or custom of the local
government unit was implicated in the violation of inhabitants' constitutional rights. Id. at 694-
95. Improper action by a law enforcement official alone is insufficient to create municipal
liability. Id.

188. "The offending official, so long as he conducts himself in good faith, may go about his
business secure in the knowledge that a qualified immunity will protect him from personal
liability for damages that are more appropriately chargeable to the populace as a whole." Owen
v. City of Independence, 445 U.S. 622, 657 (1980) (quoting Monell, 436 U.S. at 694).

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IND. INT'L & COMP. L. REv.

employing false statements to obtain the warrant.' 89  Mere mistake is
insufficient if the "officer's conduct was consistent with a reasonable effort to
ascertain and identify the place intended to be searched."' 9° A mistaken search
of a house on a different street and of a different color from the one to be
searched, however, might not be "objectively reasonable."' 9'

Damage claims against federal officers ordinarily founder on similar
impediments when suits are brought under the Federal Torts Claims Act.' 92 In
theory, Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics'93 permits recovery from Federal agents for violations of certain
constitutional rights, such as the Fourth Amendment prohibition of
unreasonable search and seizure. Such actions, however, are unavailable in a
number of situations. 194 For example, pat-down searches are entitled to
qualified immunity, but strip searches, done willfully and wantonly, are not so
protected. 195 Moreover, the evidence obtained by improper searches may still
be used in criminal prosecutions. 96

189. Hill v. McIntyre, 884 F.2d 271,273-74 (6th Cir. 1989). A seventeen-year-old girl was
handcuffed and forced to stand wearing only a sheer nightshirt until, after some delay, a female
officer provided more clothing. Dry goods and food were spilled onto the floor and the front
door was broken open. Approximately $3000 in damages was claimed. Id.

190. Maryland v. Garrison, 480 U.S. 79, 88-89 (1987).
191. Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). Compare Pray v. City of

Sandusky, 49 F.3d 1154 (6th Cir 1995) (officers' entry of wrong downstairs door in duplex unit
reasonable under circumstances since raid was at night on the premises of a suspected drug
dealer), with Richardson v. Oldham, 12 F.3d 1373 (5th Cir. 1994) (objectively reasonable to
execute search warrant against either of two houses which fit search warrant description since it
was not demonstrated that officer knew two houses fit description).

192. Qualified immunity is an affirmative defense. Harlow, v. Fitzgerald, 457 U.S. 800,
815; Gomez v. Toledo, 446 U.S. 635,640 (1980). There is also immunity for discretionary acts
under the Federal Tort Claims Act. See Berkovitz v. United States, 486 U.S. 531, 539 (1988).

193. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971) (warrantless entry into an apartment).

194. Carlson v. Green, 446 U.S. 14, 18-19 (1980). When Congress provides an alternative
remedy viewed as equally effective or when, even absent legislative remedial action, there are
"special factors counseling hesitation." Id. at 18. The Supreme Court has refused to imply a
cause of action under the Fifth Amendment for military personnel who were the victims of
alleged racial discrimination by superior officers. See Chappel v. Wallace, 462 U.S. 296 (1983);
Soldiers were severely injured when deceptively subjected to LSD experimentation by the
Army. United States v. Stanley, 483 U.S. 669 (1987). Disability recipients whose procedural
due process rights were violated in benefit termination decision. Schweiker v. Chilickey, 487
U.S. 412 (1988). All situations in which an alternative remedy was completely unavailable or
significantly limited. PETER L. STRAuss ET AL., GELLHORN AND BYSE's ADMINISTRATIVE LAW
CASES AND COMMENTS 1268-69 (10th ed. 2003).

195. Anderson v. Cornejo, 284 F.Supp. 2d 1008, 1031-36 (N.D. Ill. 2003), rev'd in part,
vacated in part and remanded, 355 F.3d 1021 (2004).

196. Hudson v. Michigan, 126 S.Ct. 2159, 2185 (2006) (evidence usable when there is
forcible entry into premises in violation of knock-and-announce rules).

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REMEDIES FOR VIOLATIONS OF FUNDAMENTAL RIGHTS

Remedies provided by the ECHR for privacy violations range from a
statement that there was a violation (the finding being just satisfaction), the
ordering of financial compensation for pecuniary or non-pecuniary damage, or
the ordering of payment for substantial costs and expenses for litigation.

Just Satisfaction from the Finding of Violation

The finding of a violation of Article 8 in a case involving customs
officers invading head offices and homes, and seizing documents with no
relationship to the investigation, was held to be adequate just satisfaction.197 It
should be noted that the Court so held even though it believed non-pecuniary
damage had been suffered.198

The Court reached a similar "just satisfaction finding" decision in a case
in which no domestic remedies existed with which to raise an arguable Article
8 issue.199 Curiously, the Court found no direct violation of Article 8 but
nevertheless reached the decision after extensive consideration of arguments
about the alleged violation. 200 Notably, the petitioner had only requested a
symbolic sum of 100 Swiss francs.2° '

Such a "just satisfaction finding" was also issued in the far more serious
home invasion case of Chalkley v. United Kingdom.20 2 The police in Chalkley
arrested the petitioner and his partner and removed them and their children,
taking them to the police station in order to plant a listening device in their
home.20 3 The police reentered the premises several months later to renew the
battery.2°4 The petitioner was charged with conspiracy to commit robbery and
burglary. The Court allowed the tape-recorded evidence to be used at trial;
eventually, the petitioner and his co-defendant entered guilty pleas and received

205ten year imprisonment sentences.In another example of surreptitious installation, police officers installed a

197. Cremieux v. France', App. No. 11471/85, 16 Eur. H.R. Rep. 357, 366 (1993).
198. Id. at 368.
199. Camenzind v. Switzerland, App. No. 21353/93, 28 Eur. H.R. Rep. 458 (1998).
200. Id. at 467. The search was for an allegedly illegal cordless telephone. Id. at 461. The

target of the search admitted that he had used such a telephone, but stated it was no longer in his
possession. Id.

201. Id. at 471. Costs of 8000 Swiss francs were awarded, less legal aid already paid. Id.
at 471.

202. Chalkley v. United Kingdom, App. No. 63831/00, 37 Eur. H.R. Rep. 30 (2003).
203. Id. at 681. The arrest regarded a separate credit card offense whose investigation had

lapsed, but was revived to give a pretext for the removal. Id. at 682. The police had a copy of
the house key cut to enable them to reenter the house later. Id. No prosecution ensued on the
credit card matter. Id.

204. Id.
205. Id. at 683. After serving approximately five years, the applicant was released on

license. Id. Costs of 4800 Euros were awarded. Id. at 686.

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IND. INT' L & COMP. L. REv.

listening device in the apartment of a friend of the defendant. The Court found
that action constituted a violation of Article 8. The finding of a violation was
held to be just satisfaction, despite the fact that the defendant had received a
sentence of three years imprisonment.2° Costs of 11,500 British pounds were

207awarded. In most cases of this type, the petitioner had already been released
from confinement, in part because of the length of time it took to take their
cases up through the domestic legal system and then over to the ECHR in
Strasbourg.2 °8

The Court has considered the possibility that an objection to confinement
itself might be addressed; in at least one case the Court required direct
causation between the material obtained in violation of Article 8 and the

209conviction.
In particular, the ECHR has held the admissibility of an illegal recording

of a telephone call does not necessarily vitiate a Swiss criminal conviction for
hiring an assassin to kill one's wife.210 In that case, the tape-recorded telephone
call was played in court before two lay judges and six jurors.21' The defendant
was found guilty of attempted incitement to murder and sentenced to ten years
imprisonment.212  Because the defendant had failed to exhaust available
domestic remedies regarding the tape recording, the Court could not consider
an Article 8 challenge.213 Accordingly, the Court considered the use of the
recording under Article 6 of the Convention, which provides for a fair trial.2 4

The Court found there was sufficient evidence other than the tape recording to
sustain the conviction, including the testimony of the "strong arm" man hired to

206. Khan v. United Kingdom, App. No. 35394/97, 31 Eur. H.R. Rep. 45, 1019 (2000).
The applicant had been released on license after serving a part of his sentence on August 11,
1994. Id.

207. Id.; see also Wood v. United Kingdom, App. No. 23414/02,2006 WL 1994706 (costs
above that already supplied by legal aid of 550 euros awarded); Elahi v. United Kingdom, App.
No. 30034/04, 2006 WL 1994706 (costs of 6000 euros awarded. It may be that this petitioner
was still in custody at the time of the ECHR decision. The sentence pronounced in 1999 was a
twelve year sentence, but the defendant had absconded and was rearrested years later); Taylor-
Sabori v. United Kingdom, App. No.47114/99, 36 Eur H.R. Rep. 17 (2002) (costs of 4800 euros
awarded); Valenzuela Contreras v. Spain, App. No. 27671/95, 28 Eur.H.R.Rep. 483, 508
(1998).

208. This is the author's impression from review of many European Court of Human Rights
cases involving domestic criminal convictions and violations of Article 8. One contributing
factor, to be sure, is the relatively shorter sentences awarded by European Courts by comparison
to American sentences. Such shorter sentences when combined with the length of time
necessary to bring and litigate a case before the ECHR likely explains the situation. See infra
note 212.

209. Schenk v. Switzerland, App. No. 10862/84, 13 Eur. H.R. Rep. 242, 48 (1988)
210. Id.
211. Id. at247.
212. Id. at 248. He actually served approximately two years, for he was given a partial

pardon because of health reasons. Id. at 261. The decision was rendered about 3.5 years after
his release. Id. at 246, 261.

213. Id. at 263.
214. Id.

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kill the wife.215

In a case involving bankruptcy, a lawyer was permitted to inspect the
petitioner's mail in a manner not in accordance with law.216 The Court rejected
a claim for non-pecuniary damage, stating the finding of a violation was itself
sufficient. 2

1
7 Additionally, in a similar case, the search of a lawyer's office

pursuant to a search warrant was deemed unlawful and unjustified, and such
finding was deemed just satisfaction.218

Pecuniary and Non-pecuniary Damage Awards

The ECHR has, in many other cases, awarded damages to petitioners who
allege violations of their rights to privacy under Article 8 of the Convention:
either as non-pecuniary damages, emotional distress, or pecuniary damage. For
example, a case involving a person taped on another's tapped phone resulted in
an award of 10,000 francs.21 9 In addition, an award of 11,800 euros was
granted for non-pecuniary emotional damages in a case involving the closed
circuit television taping and subsequent broadcast of an individual brandishing
a knife on a public street.220

In a case involving covert surveillance of a police holding cell, the Court
awarded 1,642 euros in non-pecuniary damages for violation of the petitioner's
right to respect for private life and because of the lack of an effective remedy
under domestic law. 22

1 The petitioner was convicted of murder and given a life
sentence because of the taped evidence.222

Another case, involving customs officers violating Article 8 by searches
and seizures in a home, resulted in an award of 50,000 francs for non-pecuniary

215. Id. at 266. The Court briefly stated it could not directly reach the Article 8 issue, but
in dicta it indicated it would have reached a similar result under Article 8. Id. at 268. See also
Valenzuela Contreras v. Spain, App. No. 27671/95, 28 Eur. H.R. Rep. 483,508 (1998) (costs of
1,5000,000 pesetas were awarded); Elahi v. United KingdomApp. No. 30034/04, 2006 WL
1994706 (costs of 6000 euros awarded).

216. Narinen v. Finland, App. No. 45027/98, 4 Eur. H.R. Rep. 241, 1 37 (2004).
217. Id. [ 46, 49. App. No. 45027/98, 4 Eur. H.R. Rep. 241, 257 (2004) (costs and

expenses of 5043 euros were awarded).
218. Niemietz v. Germany, App. No. 13710/88,16 Eur. H.R. Rep. 97, 103 (1993). Accord

Kruslin v. France, App .No. 11801/85, 12 Eur. Comm'n H.R. Dec. & Rep. 451, 454 (1990).
219. Lambert v. France, App. No. 23618/94, Eur. H.R. Rep. 346,348,355 (1998) (costs of

15,000 francs were also awarded).
220. Peck v. United Kingdom, App. No. 44647/98,36 Eur. H.R. Rep. 41,753 (2003) (costs

of 18,075 euros were also awarded).
221. Allan v. United Kingdom, App. No. 48539/99,36 Eur. H.R. Rep.. 12 (2003). Costs of

12,800 euros were also awarded. Id. at 161. The Court had also found a violation of an Article
6 right, the right to a fair trial, partly through the police placing an informant in the jail cell with
the defendant, gaining information in defiance of the will of the defendant, and thereby
impinging upon the defendant's right to silence and privilege against self-incrimination. Id. at
159. The applicant's request for violation of his right to privacy was for a "reasonable sum."
Id. at 160.

222. Id. at 148. The murder conviction was obtained on a ten to two jury vote. Id.

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IND. INT'L & COMP. L. REV.

223damages. In a forcible entry case, where the police broke down the door of a
private home with a battering ram, the Court awarded 3,000 euros each to the
husband, wife, and fourteen year old child, and 2,000 Euros each to the parties'
young children even though the suspect had moved more than seven months

224prior to entry, . The Court noted the "violent and shocking nature of the
police entry of the applicants' home" as well as the undoubted distress caused
and medical reports indicating they would benefit from therapeutic
intervention.225 Similarly, in another case the improper publication of private
telephone conversations of the former prime minister of Italy, Benedetto Craxi,
resulted in an award of 2,000 euros to each member of the prime minister's
family in non-pecuniary damages.226

In Michta v. Poland, the improper opening of prison correspondence
resulted in an award of 1,500 euros in non-pecuniary damages.227 Further, in a
case involving interception of private telephone calls of an applicant who was
at the time an Assistant Chief Constable, the Court awarded 10,000 British
pounds in non-pecuniary damages.228 The Court noted the interception of calls
was conducted for the primary purpose of collecting material to be used against
the applicant in sex discrimination proceedings that she herself had initiated.229

This was considered a serious infringement of her rights.23°
In a sequence of cases from Turkey, the ECHR consistently held Article 8

was violated, along with other Articles of the European Convention, when
security forces destroyed the houses of various people. Deliberate destruction
of houses and property constituted grave and unjustified interference with the
rights to private and family life.23' For example, pecuniary damages of 25,000
euros and non-pecuniary damages of 14,500 euros were awarded in a case
involving the burning of a house.232 In a similar case, each of five applicants
were awarded over 8,000 euros in pecuniary damages for the physical damage
to their houses and outbuilding, 6,000 euros for other property, 6,000 euros for
lost income, 6,000 euros for rent for alternative housing, and 14,500 euros in

223. Funke v. France, App. No. 10828/84, 16 Eur. H.R. Rep. 297, 313 (2003). The
amount requested was 300,000 francs. Costs of 70,000 francs were also awarded. Id. at 312.
One factor used in reaching the conclusion that Article 8 was violated was the fact that the
prosecution was not related to the original reason cited for the search. One might surmise that
the unregulated discretion of the customs officers to conduct a search was viewed as particularly
suspect, since the search failed to turn up the anticipated evidence of criminal conduct.

224. Keegan v. United Kingdom, App. No. 28867/03. Costs and expenses of 9500 euros
were also awarded. Id. 53.

225. Id. 48.
226. Craxi v. Italy, App. No. 25337/94, 38 Eur. H.R. Rep. 47, 1025 (2004). No costs were

requested. Id.
227. Michta v. Poland, App. No. 13425/02 Eur .Ct. H.R. 537 (2006),
228. Halford v. United Kingdom, 24 Eur. H.R. Rep. 523, 550 (1997).
229. Id.
230. Id. 600 British pounds were awarded for pecuniary damages and 25,000 British

pounds for costs. Id. at 552.
231. Yoyler v. Turkey, App. No. 26973/95 Eur. Ct. H.R. 398 (2003).
232. Id.

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PRIVACY WARS: EU VERSUS US

233
non-pecuniary damages.

Conversely, in a Turkish case authorities had detained sixteen Turkish

lawyers, five of whom had their houses and offices searched during the
detention. The lawyers were awarded various sums, ranging from 1,510 to

1,660 euros each in pecuniary damages and from 12,000 to 25,500 euros each
in non-pecuniary damages.234 However, none of the lawyers made a specific

claim for just satisfaction in relationship to violations of Article 8 of the

Convention. 235 The higher non-pecuniary damage awards relate to torture, ill-
treatment, and unlawful detention by the authorities, with the awards increasing

as the length of detention increased.236

Conclusion Regarding Remedies

In a high proportion of cases involving invasion of privacy, when the

basis for state intervention was suspected criminality, the finding of violation as

"just satisfaction" is often the major remedy provided. 237 Court costs, including
attorneys' fees, are rdinarily awarded as well.238 In none of these reviewed

233. Ayder v. Turkey, App. No. 23656/94, Eur. Ct. H.R. 3 (2004), available at
http://worldlii.org/eu/cases/ECHR/2004/3.html. Costs of 40,000 euros were also awarded less
725 euros in legal aid already paid. Id.; accord Ozkan v. Turkey, App. No. 21689/93 Eur. Ct.
H.R. (2004), available at http://worldlii.org/eu/cases/ECHR/2004/133.html (non-pecuniary
damages of 1500 euros to 49,800 euros awarded to thirty-two different families); Akdivar v.
Turkey, App. No. 21893/93, 23 Eur.H.R.Rep. 143, 194 (1997); Mentes v. Turkey, App. No.
23186/94, 26 Eur. H.R. Rep. 9 (1998); Selguk v. Turkey, App. Nos. 23184/94 and 23185/94,26
Eur. H.R. Rep. 447 (1998) (awards given of 1,000,000,000 dinars to two applicants for
destroyed buildings, 4,000,000,000 dinars in pecuniary damages, and 10,000 in British pounds
for non-pecuniary damages); Bilgin v. Turkey, App. No. 23819/94,36 Eur. H.R. Rep. 50 (2003)
(pecuniary damages of 12,000 British pounds and non-pecuniary damages of 10,000 British
pounds awarded for burning of house and property).

234. Elci v. Turkey, App.No. 23145/93; 25091/94 Eur. Ct. H.R. (2003), available at
http://worldlii.org/eu/cases/ECHRI2003/588.html.

235. Id. However, only three of the remaining lawyers were awarded non-pecuniary
damages above those of any of the five lawyers whose Article 8 rights were violated,
respectively one award of 14,400 euros, and two of 36,000 euros. It appears these awards are
largely proportional to the time of unlawful detention. Also, the awards of pecuniary damages
appear to relate to lost earnings for the period of detention. Id.

236. Id.
237. See Wood v. United Kingdom, App. No. 23414/02, 636 Eur. Ct. H.R. (2004);

Valenzuela Contreras v. Spain, App. No. 27671/95, 28 Eur.H.R.Rep. 483,508 (1998); Kruslin
v. France, App. No. 11801/85, 12 Eur. Comm'n H.R. Dec. & Rep. 547,455-59 (1990); Taylor-
Sabori v. United Kingdom, App. No. 47114/99, 36 Eur.H.R. Rep. 17, IM 16-19 (2003);
Niemietz v. Germany, App. No. 13710/88, 16 Eur. H.R. Rep. 97, 103 (1993); Narinen v.
Finland, App. No. 45027/98, 4 Eur. H.R. Rep. 241, 37 (2004); Elahi v. United Kingdom,
App.No. 30034/04, 2006 WL 1994706; Kopp v. Switzerland, App. No. 23223/94, 27
Eur.H.R.Rep. 91(1999).

238. See Soini v. Finland, App. No. 36404/97, 2006 Eur. Ct. H.R.48 (each applicant
awarded 1,000 euro, as well as 425.9 euro for costs and expenses); Contreras, App. No.
27671/95, 28 Eur.H.R.Rep. at 508 (no award for pecuniary damage, but 1,500,000 pesetas for
expenses and lawyers' fees awarded); MM v. Netherlands, App. No. 39339/98, 39 Eur. H.R.

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IND. INT'L & COMP. L. REV.

cases did courts order criminal convictions overturned because of improper
privacy invasions.

In cases where criminal activity was not the basis for surveillance, modest
damage awards (by American standards) of both a pecuniary and non-pecuniary
nature were ordinarily awarded. In some cases involving criminal conduct,
such damage awards also occurred. Since damage awards are ordinarily paid
by the states in the Council of Europe, one may assume that these awards were
paid as well, providing some tangible recognition of the violation plus the
intangible value of a finding that the government violated the fundamental right
to privacy.

When serious property destruction accompanies the privacy invasion, the
ECHR is quite willing to order far more substantial pecuniary damage awards,
such as in numerous cases from Turkey involving the destruction of homes and
property.239 Noticeably absent, however, from ECHR damage awards is any
rule indicating that where no actual damages are awarded, costs (legal fees and
expenses) may not be awarded. The two types of awards, damages and costs,
appear to remain disconnected in the ECHR.

Significantly, the ECHR is on course to carve out a system of human
rights protection for over 800 million people from the more than forty-five
states currently forming the Council of Europe.24

0 Thus, any decision that
solidifies a rule of law either curtailing or defining the power of government or
liberties of fellow citizens has significant value. To award legal costs
encourages people to bring such cases and courts to define such rights.
Therefore, such cases have significant societal value.

Additionally, conspicuously missing from the privacy decisions of the
ECHR are orders of injunctive relief. No case or statute requires a state to
conform its legislative and administrative statutes and regulations to the ECHR
commands. Except for awards of damages and costs, there is no direct
confrontation with the sovereign nature of states. But, many cases do mention
that legislative changes have occurred, often subsequent to the operative facts
of the case at bar.241

Rep. 19 (2004) (10,000 euros awarded for costs and expenses); Kruslin, App. No. 11801/85, 12
Eur. Comm'n H.R. Dec. & Rep. at 455 (20,000 francs for costs and expenses); Halford v.
United Kingdom, App. No. 20605/92, 24 Eur.H.R.Rep. 523 (1997) (25,000 pounds awarded for
costs and expenses); Keegan v. United Kingdom, App. No. 28867/03, Eur. Ct. H.R. (2006)
(9,500 euros for costs and expenses); Narinen v. Finland, App. No. 45027/98,4 Eur. H.R. Rep.
241, 1 37 (2004) (6843 euros for costs and expenses); Elahi, App.No. 30034/04, 2006 WL
1994706 (6000 euro for costs and expenses); Allan v. United Kingdom, App. No. 48539/99, 36
Eur. H.R. Rep. 12 (2003) (12,800 euros for costs and expenses); Peck v. United Kingdom App.
No. 44647/98, 36 Eur. H.R. Rep. 41 (2003) (18,075 euros for costs and expenses); Khan v.
United Kingdom, App. No. 35394/97, 31 Eur. H.R. Rep. 45 (2001) (11,500 pounds for costs
and expenses); Kopp, App. No. 23223/94, 27 Eur.H.R.Rep. at 91 (15,000 francs for costs and
expenses).

239. See, e.g., Selguk v. Turkey, App. Nos. 23184/94 and 23185/94,26 Eur. H.R. Rep. 447
(1998).

240. See supra note 32.
241. See, e.g., Klass v. Germany, App. No. 5029/71, 2 Eur. H.R. Rep. 214, 231 (1980).

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PRIVACY WARS: EU VERSUS US

Clearly, the decisions of the ECHR have encouraged states to change
their domestic law in order to avoid future legal problems. The United
Kingdom's adoption of the Human Rights Act of 1998, which made the
European Convention on Human Rights domestically applicable within the
country, is one example. 242 By not ordering statutory changes, the ECHR
avoids the type of conflict with sovereign power exemplified by United States
Supreme Court decisions, such as Martin v. Hunter's Lessee.243 Accordingly,
one may credit the ECHR with adopting a wise policy to minimize conflicts
with states.

By awarding costs even when a prisoner's confinement resulted from
evidence of criminality gained from an invasion of privacy, the ECHR sets a
standard for the states of the Council of Europe to aspire. When the evidence
of criminality relates to some other offense other than the original reason for
surveillance, significant non-pecuniary damages have been awarded. 2"
According to the ECHR, invasions of privacy must be narrowly and strictly
authorized for appropriate and proportionate reasons. 245  Thus, broad
administrative or police discretion is antithetical to the legal order the ECHR
finds embodied in the European Convention on Human Rights.

Moreover, in contrast to the general practice in the United States in which
an improper search generates (at best) the preclusion of the use of the evidence
or its fruits in a criminal case, the ECHR may award non-pecuniary damages.
Likewise, the ECHR approach rejects the U.S. approach, which ordinarily
rejects the award of attorneys' fees unless something beyond nominal damages
are awarded. 246 The U.S. approach permits an award of nominal damages in
cases involving the deprivation of constitutional rights unless actual injury can
be demonstrated.247 In cases involving improper searches the United States
Supreme Court suppresses the improperly gathered evidence, but does not
apply any other remedy. 248

242. Human Rights Act 1998, ch. 42 (Eng.).
243. 14 U.S. 304 (1816) (conflict between the Virginia Court of Appeals decisions and

decisions by the United States Supreme Court). See also Roe v. Wade, 410 U.S. 113 (1973)
(effectively invalidating all state abortion legislation); Furman v. Georgia, 408 U.S. 238 (1972)
(effectively invalidating all existent state capital punishment legislation).

244. See, e.g., Funke v. France, App. No. 10828/84, 16 Eur. H.R. Rep. 297, 312 (1993)
(seizures related to alleged financial dealings gave rise to parallel proceedings for disclosure of
documents resulted in 50,000 francs for non-pecuniary damage plus 70,000 francs for costs and
expenses);

245. See, e.g. Funke, App. No. 10828/84, 16 Eur. H.R. Rep. at 57 ("strictly
proportionate to the legitimate aim pursued"); Kopp v. Switzerland, App. No. 23223/94, 27
Eur.H.R.Rep. 91, 72 (1999) ("law must be particularly precise"); Huvig v. France, 12 Eur.
H.R. Rep. 528, 34 (1990) (law must "afford adequate safeguards against various possible
abuses").

246. Farar v. Hobby, 506 U.S. 103, 111-12 (1992) (actual relief, either monetary damages
or a judgment or order affecting the "behavior of the defendant towards the plaintiff'). Id. at
110.

247. Carey v. Piphus, 435 U.S. 247 (1978).
248. Hudson v. Michigan, 126 S. Ct. 2159,2165 (2006) (violation of knock and announce

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IND. INT'L & COMP. L. REV.

Similarly, in a decision involving statutory interpretation, the Supreme
Court required proof of actual damages from a privacy violation under the
Privacy Act 249 before the plaintiff could recover the statutory minimum
damages of $1,000.250 Privacy concerns, however, are inherently intangible.
How does one value the solitude of seclusion in the midst of a Redwood forest,
or the value of some degree of seclusion in the midst of a busy, urban
neighborhood or building?

THE EU PRIVACY DIRECTIVE: CONTRAST WITH U.S. PRIVACY LAW

In addition to the effects the European Convention on Human Rights has
on privacy, an entirely separate but interrelated regime exists in Europe
regarding privacy law: the regime regulated by the European Privacy Directive
of the European Parliament and the Council of Europe of October 24, 1995.251
That directive requires the member states of the European Union 252 to develop
domestic laws regarding privacy under the Directive's guidance.25 3 Such
domestic law must include very specific elements and mandate personal
information be:

Processed fairly and lawfully;
Collected for specified and legitimate purposes only;
Accurate and up-to-date;
Steps must be taken to rectify or erase incorrect data;
Nontransferable to third parties without permission;
Nontransferable to countries which lack adequate privacy

protection;
Protected by a corporate data controller (equivalent to the

U.S. chief privacy officer responsible for ensuring that data
practices are followed;

Processed only in cases where the subject has given clear
consent.254

At first glance, the sharpest difference between European and American
privacy law is the adoption of an "opt in" versus "opt out" system of approving

rule no justification for application of exclusionary rule for evidence).
249. 5 U.S.C. § 552A(g)(4)(A)(2004).
250. Doe v. Chao, 540 U.S. 614, 621 (2004) (citing the general tort rule that actual damage

is required for recovery). Accord Memphis Cmty Sch. Dist. v. Stachura, 477 U.S. 299 (1986)
(damage based upon abstract value or importance of constitutional rights held not a permissible
element of compensatory damages in cases under 42 U.S.C. § 1983).

251. Council & Parliament Directive 95/46, 1995 O.J. (L281) (EC).
252. All member states of the EU are also members of the Council of Europe, but more

than a dozen members of the Council of Europe are not members of the EU, including, for
example, Russia, Switzerland, and Turkey. See supra note 32.

253. Council & Parliament Directive 95/46, art. 32, 1995 O.J. (L281) (EC).
254. Council Directive, Daintry Duffy EU Data PrivacyDirective, CSO, Aug. 2003,

http://csoonline.comi/read/080103/privacy-sidebarr-1607.html.

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PRIVACY WARS: EU VERSUS US

the release and use of personal data. In the European system, each data subject
(i.e. person) must give clear, explicit permission for the data to be collected,
used, and/or transferred. 255 American law has generally adopted an opt out
approach, in which a data subject must affirmatively inform a business entity
that he or she does not want the data shared.256

Exceptions to the EU requirement of explicit permission do exist: if the
collection of data is necessary for performing a contract with the data subject; is
for compliance with a legal obligation; is necessary for protecting the vital
interests of the data subject; is necessary for the performance of a task carried
out in the public interest; or is necessary for legitimate purposes pursued by the
controller or by a third party to whom data is disclosed, except where such
interests are overridden by the interest for fundamental rights and freedoms of
the data subject with protection under Article I of the Privacy Directive.257

The first major dispute between the U.S. and the EU pertained to the
Privacy Directive and the related effort to develop a safe harbor solution to
permit U.S. business enterprises to continue to operate in Europe.258 Case law
and national legislation concerning this Directive is far less developed than that
of the ECHR regarding privacy rights embodied in the European Convention on
Human Rights. Nevertheless, the ECJ has decided several interesting privacy
cases.

259

The Directive is not limited to commercial activity. For example, the
Directive applied to church parishioners putting personal information on a web
page, despite the non-commercial nature of this act.260 The web page posting
sometimes included full names, sometimes first names, and described the jobs

255. Council & Parliament Directive 95/46, art. 7(a), 1995 O.J. (L281) (EC).
256. Gramm-Leach-Bliley Act, 26 U.S.C. § 6103 (1975), amended by Pub. L. No. 108-

173, 117 Stat. 2066 (2003).
257. Council Directive 95/46, art. 7(b)-(f) 1995 O.J. (L 281) 31 (EC).
258. Alexander Zinser, The Safe Harbor Solution: Is It an Effective Mechanism for

International Data Transfers Between the United States and the European Union?, 1 OKLA. J.L.
& TECH. 11 (2004). "[W]ith regard to data transfers from the European Union to the United
States, data controllers in the United States are required to ensure an adequate level of
protection in order to be in compliance with European data protection laws. However, the
fulfillment of the requirement of adequacy is problematic." Id.; Kyle T. Sammin, Note, Any
Port in a Storm: The Safe Harbor, The Gramm-Leach-Bliley Act, and the Problem of Privacy
in Financial Services, 36 GEo. WASH. INT'L L. REV. 653 (2004). See also, Gregory Shaffer,
Globaliztion and Social Protection: The Impact of EU and International Rules in the
Ratcheting Up of U.S. Privacy Standards, 25 YALE J. INT'L L. 1 (2000).

259. See Case C-101/01, Lindqvist, [2003] E.C.R. 1-12971; Case C-68/93, Shevill v.
Presse Alliance SA, [1995] E.C.R. 1-415; Case 53/84, Adams v. Comm'n, [1985] E.C.R. 3595.

260. Case C-101/01, Lindqvist, [2003] E.C.R. 1-12971. "[P]rocessing of personal data
such as that described... is not covered by the exceptions in Art. 3(2) of Directive 95/46." A
fine of SEK 4000 plus SEK 300 to be paid to a Swedish fund to assist victims of crimes was
assessed by the Swedish trial court. Id. On Jan. 29, 2007, one U.S. dollar was equal to SEK
6.9767. Currency Converter, http://finance.yahoo.com/currency/
convert?amt=1&from=USD&to=SEK&submit=Convert.

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IND. INT'L & COMP. L. REv.

261
held and hobbies of eighteen colleagues in the parish.

The EU differs from the Council of Europe, however, because its primary
focus is on economic matters rather than issues of human rights.262 Still,
personal rights litigation does sometimes implicate economic concerns, such as
privacy rights protected through defamation lawsuits.

The ECJ considered the matter of jurisdiction for suits in defamation in
Shevill v. Presse Alliance SA.263 The Court held that the target of a defamatory
publication could bring legal action in either the state in which the publisher
was established or before the courts of each contracting state in which the
publication was distributed.26 If suit was brought in a contracting state of
distribution, the damages recoverable were limited to the harm caused in that

265contracting state. If the action was brought either in the state of the
defendant's domicile or where the publisher was established, however, suit
could be brought for all harm caused.266 Thus, in effect the broadest scope was
permitted within the contracting states of the EU for lawsuits protecting aspects
of privacy through defamation suits.

In a more unusual privacy case, a whistleblower employee of a Swiss
company violating EU antitrust law had his name disclosed by the employees of
the EU Commission. As a result, when he subsequently went to Switzerland,
he was arrested and criminally prosecuted for making the disclosures. 267 The
whistleblower sued the Commission for damages as well as for an order
requiring Switzerland to correctly interpret and respect international law.268

The subject of searches has been frequently considered by the ECJ in
reported cases. The Court has repeatedly affirmed that the EU Regulations
must be interpreted in ways consistent with the fundamental rights protected by
the European Convention on Human Rights.269 The Court has distinguished

261. Id. 1 13. In many cases family circumstances, telephone numbers, and other matters
were mentioned. The defendant also stated that one colleague had injured her foot and was on
half-time on medical grounds. Id.

262. See MATS LINDFELT, FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION - TOWARDS

HIGHER LAW OF THE LAND? 1-4, ABO Akademi University Press (2007)(discusses the limited
incorporation of fundamental rights in EU jurisprudence).

263. Case C-68/93, Shevill v. Presse Alliance SA, [1995] E.C.R. 1-415.
264. Id. 33.
265. Id. 130.
266. Id. N 25, 32.
267. Case 53/84, Adams v. Comm'n, [1985] E.C.R. 3595. The Commission was ordered

to pay half the damage suffered by Mr. Adams as a result of identifying him as the source of the
information. He was held in solitary confinement in Swiss prison and convicted under Swiss law
for economic espionage. While he was in prison, Mr. Adams' wife was interrogated by Swiss
police officers and then she committed suicide. See RALPH H. FOLSOM, PRINCIPLES OF

EUROPEAN UNION LAW 94 (2005); Kurt Riechenberg, The Merger of Trading Blocks and the
Creation of the European Economic Area: Legal and Judicial Issues, 4 TuL. J. INT'L & COMP.
L. 63, 75-76 (1995).

268. Case 53/84, Adams v. Comm'n, [1985] E.C.R. 3595.
269. See Case 85/87, Dow Benelux NV v. Comm'n, [1989] E.C.R. 3137; Case 97/87, Dow

Chems. Iberica v. Comm'n, [1989] E.C.R. 3165; Case 4/73, Nold v. Comm'n, [1977] E.C.R. 7;

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PRIVACY WARS: EU VERSUS US

between the protections of the home and protections of business premises, for
which "not inconsiderable divergences between the legal systems of the
Member States in regard to the nature and degree of protection afforded to
business premises against intervention by the public authorities. 270 In all legal
systems of the member states, however, any intervention must have a legal
basis. Consequently, those varied systems provide protection against arbitrary
or disproportionate intervention.271

The broad search powers granted to the Commission include
authorization to: examine books and other business records; take copies of or
extracts from the books and business records; ask for oral explanations on the
spot; and enter any premises, land, and means of transport of undertakings.272

In order to conduct such examinations, prior authorization is required. With the
authorization and required cooperation of the national authorities (who have a
very limited ability to question the legitimacy of the search),27 3 the investigation
is authorized to go forward; however, they

may not obtain access to premises or furniture by force or
oblige the staff of the undertaking to give them such access, or
carry out searches without the permission of the management
of the undertaking, which may, however, be implied, in
particular by the provision of assistance to the Commission's
officials.

2 74

If the undertaking expresses opposition to the investigation, however, the
Commission may search for any information with the "assistance of the national
authorities, which are required to afford them assistance necessary for the
performance of their duties. 275 Each state has an obligation to ensure that the

Case 222/84, Johnston v. Chief Constable, [ 1986] E.C.R. 1651; Case 46/87, Hoest v. Comm'n,
[1989] E.C.R. 2589.

270. Dow Benelux NV, [1989] E.C.R. at 28.
271. Id. The Court also noted that it has the power to determine whether measures taken by

the Commission under the European Coal and Steal Community Treaty are excessive. Id.
(citing Case 5/62, Societa Industriale Acciaiene San Michele v. Eur. Coal and Steel Cmty.,
[1962] E.C.R. 449).

272. Id. 32 (citing Treaty Establishing European Coal & Steel Community, art. 14(1),
Apr. 18, 1951, 261 U.N.T.S. 140).

273. Id. 6.
[The] national body, after satisfying that the decision ordering the investigation is
authentic, [are] to consider whether the measures of constraint envisaged are
arbitrary or excessive having regard to the subject-matter of the investigation and
to ensure that the rules of national law are complied with in the application of
those measures.

Id. 7. See also Case C-94/00, Freres v. Consommeation et de la Repression des Fraudes,
[2002] E.C.R. 1-9011. (Community law precluded review by the national court of the
justification of measures beyond that required by the principal that coercive measures were not
arbitrary or disproportionate to the subject matter of the investigation).

274. Freres, [2002] E.C.R. 1-9011.
275. Id.

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IND. INT'L & COMP. L. REv.

Commission's action is effective, but in doing so they respect the relevant
procedural guarantees "laid down by national law. 27 6

Attorney-client confidentiality is respected by many of the contracting
states and will be respected by the Commission under case law of the ECJ.277

The definition of "attorney" is critical. In-house lawyer communication is not
protected, because such lawyers are considered employees of the enterprise.278

Moreover, the protection afforded to communications from outside lawyers
only applies to lawyers entitled to practice in one of the Member States.279

American lawyers practicing in Europe, who are not qualified to practice in one
of the member countries, enjoy no confidentiality of written communication.80

Remedies Under Members State Laws

As indicated above, remedies in EU member states for violation of laws
relating to privacy include both criminal and civil sanctions. Under the
provisions of the Privacy Directive and implementing member state statutes,
what may be considered more serious penalties may be imposed upon a
business entity that desires to collect and maintain personal data for business
purposes. The enterprises may be banned from such activity if they fail to
comply with the privacy commands and thus suffer serious hardship in their
efforts to prosper as an economic enterprise. 2 1 This is particularly significant
to banks, airlines, insurance companies, and marketing enterprises of all types,
who would be unable to collect and manage data about their customers and
clients.282

276. Id. 44.
277. See Case 155/79, Austl. Mining & Smelting Eur. Ltd. v. Comm'n, [1982] E.C.R.

1575, 1 3.
278. Id. 129.
279. See id. 25. Regardless of the member state in which the attorney is licensed, the

protection of attorney-client confidentiality stems from either of two sources: recognition of the
role of attorneys in a system of a rule of law or, alternatively, that the "right of defence must be
respected." Id. 1 20.

280. See id. 125.
281. For violation of the safe harbor agreement, "[S]anctions include deletion of data

obtained improperly in violation of the Safe Harbor Principles, 'suspension and removal of a
seal, compensation for individuals for losses incurred as a result of non-compliance' and/or
injunctive orders." Zinser, supra note 258, at 40. Furthermore, "[Pirivate sector dispute
resolution bodies and self-regulatory bodies must notify failures of safe harbor organizations to
comply with their rulings to the governmental body with applicable jurisdiction or to the
courts." Id. (quoting Issuance of Safe Harbor Principles and Transmission to European
Commission, 65 Fed. Reg. 45666-01 (July 24, 2000). They are also required to notify the
United States Department of Commerce. Id.

282. See Joel R. Reidenberg, E-Commerce and Trans-Atlantic Privacy, 38 Hous. L. REv.
717, 735-38 (2001); Fred Cate, The Changing Face of Privacy Protection in the European
Union and the United States, 33 IND. L. REv. 174, 227-229 (1999).

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CONCLUSION

This Article, in a broad outline, sketches a number of the major European
regulatory systems regarding privacy. These systems contemplate far more
privacy than is typical in the United States. The idea that a jail cell inmate or a
person walking down the street would enjoy privacy protections is quite absent
from American law but starkly present in European law.

It would be unthinkable in the United States for a court to hold, as did the
ECHR, that the eldest daughter of Prince Rainier II of Monaco, Princess
Caroline, had a valid complaint that German law did not adequately protect her
from paparazzi who followed her every daily movement because her private life
made no contribution to a debate of general interest.283 Similarly, one would
expect that the ECHR would hold that the public has no legitimate interest in
learning that the Italian King in exile, Victor Emmanuel In, had procured
prostitutes for business associates or for himself (absent, that is, prosecution for
soliciting). The European approach to privacy, limiting data disclosure to
particular purposes with explicit consent required and prohibiting further
transmission of such data without further permission, makes a great deal of
sense. These principles are essentially absent in United States privacy laws.

283. Von Hannover v. Germany, App.No. 59320/00, 43 Eur. H.R.Rep. 7 (2006).
Furthermore the Court considers that the public does not have a legitimate
interest in knowing where the applicant [Princess Caroline and her children] is
and how she behaves generally in her private life even if she appears in places
that cannot always be described as secluded and despite the fact that she is well
know to the public.

Id. 77.

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