Towards a Right to Privacy in Transnational Intelligence Networks

Transnational intelligence networks have emerged as an essential tool for combating international terrorism and criminal activity. As with domestic intelligence-gathering, they raise a number of privacy concerns: the risk of false information, the danger that intelligence will be used for illegitimate purposes, and the burden placed on human dignity and individual autonomy by free-wheeling data gathering. Transnational networks, however, exacerbate these privacy problems due to the dispersed nature of government authority and the difficulty of ensuring compliance with privacy duties by each node in the network. This article illustrates the dangers of transnational intelligence sharing with the case of Maher Arar, the Canadian national who was suspected of involvement with Al Qaeda and was sent by U.S. authorities to Syria to be held captive and tortured. Although the privacy dimension of this incident are generally unappreciated, the decision to deport Arar was based on misleading information provided by the Canadian authorities via a transnational intelligence network – the free-flow-of-information agreement between Canadian and U.S. intelligence agencies. The article then turns to the multilateral privacy guarantees that have been built into another transnational intelligence network – the Europol Convention for fighting cross-border crime – and argues for their adoption in transnational networks more generally