U.S.-EU citizens are equally treated under U.S. law, as under EU law, in the law enforcement context


NANCY C. LIBIN: The
other misconception is that, again, in the
law enforcement context that U.S. Law treats EU citizens
differently than U.S. Citizens. I think that this
misconception stems from a reading of the
Privacy Act, as I said, which does apply
to U.S. Persons, which are defined
as U.S. Citizens and permanent resident
aliens of the United States. And the Privacy Act does not
apply to non-U.S. Persons. And I think the concern
in the European Union, from what we’ve heard, is that
in particular, EU citizens would not get the right
to access their data– because the Privacy Act
provides for access– and would not have the
right to correct their data, because the Privacy Act provides
the right of correction, and would not have the
right to Judicial Redress to enforce those rights– because the Privacy Act
provides for Judicial Redress. In the law enforcement
context, the Privacy Act exempts all data collected
for law enforcement purposes from those three provisions
of the Privacy Act– the access, correction,
and Judicial Redress. And so U.S. citizens
are in the same position as EU Citizens are in the
law enforcement context under the Privacy Act,
with respect to those three provisions I just
mentioned, which are the three that are the
subject of all the discussion with the European Union about
the application of the Privacy Act. It’s very similar,
almost identical, to the EU framework decision,
which also derogates from the same rights in the EU
In the law enforcement context, and for obvious reasons. And this is something that
we have talked about recently in our discussions with
our European colleagues. And similarly, under the
EU Framework decision, because the individual has
no right to get access to his or her records, the individual
cannot review the records himself or herself to determine
whether there is an error in those records. And the same situation
exists in the United States. EU citizens and U.S.
citizens– neither of them can get access to criminal
investigatory records. Nor can U.S. citizens
or EU citizens go to court to get their
criminal investigatory records. It’s just not provided– that opportunity.

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