Transatlantic Privacies—Lessons from the NSA-Affair

Although maintaining a good connection for decades the US and Germany faced severe disruptions in their relationship as a result of the Snowden revelations in 2013. Those tensions were the product of the two countries’ different notions of privacy, which are embodied in—and foster—very different legal regimes for the protection of privacy. The American approach shows greater confidence in the political process for striking the balance between privacy and security. When the courts become involved, they enforce a specialized constitutional privacy right that has been calibrated to tolerate the state’s surveillance and intelligence-gathering activities. The German approach emphasizes the judicial enforcement of a broad and general concept of privacy. In its sensitivity to technology’s ubiquity and the deeply revealing portraits that can be developed through the accumulation of a vast amount of discrete data, the German jurisprudence has been a pioneer of the mosaic approach to privacy. The American jurisprudence, so far, has only cautiously embraced the mosaic approach to privacy, which seems to better account for the comprehensive and intimate uses to which we put technology today.