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It is common knowledge that privacy in the market and the media is protected less in the United States than in Europe. Since the terrorist attacks of September 11, 2001, it has become obvious that the right to privacy in the government sphere too is protected less in the United States than in Europe. This Article brings alive the legal difference by considering the case—real in the United States, hypothetical in Europe— of a spy agency's database of call records, created for the purpose of identifying potential terrorists. Under U.S. law such an antiterrorism database might very well be legal. But under European law the very same database would clearly be illegal. Numerous barriers to transatlantic cooperation on fighting terrorism and cross-border crime have been created by this legal difference. The Article considers the reasons for the transatlantic difference--surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than are Europeans. Based on the transatlantic comparison, this Article concludes with a number of recommendations for the reform of U.S. information privacy law, chief among them being the creation of an independent privacy agency.

Antiterrorism intelligence sharing across national borders has been trumpeted as one of the most promising forms of networked global governance. By exchanging information across the world, government agencies can catch terrorists and other dangerous criminals. Yet this new form of global governance is also one of the most dangerous. Even at the domestic level, secrecy and national security imperatives have placed intelligence agencies largely beyond legal and democratic oversight. But at the global level, accountability is missing entirely. Global cooperation among national intelligence agencies is extraordinarily opaque. The nature of the international system compounds the problem: these actors do not operate within a robust institutional framework of liberal democracy and human rights. Safeguarding rights in the transnational realm when governments conspire to spy, detain, interrogate, and arrest is no easy matter. Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when government agencies exchange intelligence across national borders. Part V invokes the cause celebre of Maher Arar, a Canadian national, to illustrate the disastrous consequences of privacy breaches in this networked world of intelligence gathering. Acting upon inaccurate and misleading intelligence provided by the Canadian government, the United States wrongfully deported Arar to Syria, where he was tortured and held captive by the Syrian Military Intelligence Service for nearly one year. Part VI begins the constructive project of redesigning transnational networks to defend the right to privacy, with the safeguards of European intelligence and police networks serving as inspiration for transnational networks more broadly. These European systems feature two types of privacy safeguards: multilateral standards, to which all network parties must adhere, and unilateral standards, applicable under the law of one network party and enforced against the others through the refusal to share intelligence with sub-standard parties. Moving to the global realm, this Article concludes that the multilateral avenue is more promising than the unilateral one. Multilateral standards require consensus on common privacy norms, and consensus will be difficult to achieve. Notwithstanding this hurdle, multilateral privacy standards are crucial, for they will both enable the cooperation necessary to fight serious transnational crime and provide for vigorous protection of basic liberal rights.