The NYT and National Security

THE NYT AND NATIONAL SECURITY….So did the New York Times really do any harm by exposing the Treasury Department’s terror finance tracking program? After all, surely al-Qaeda already knows we’re doing our best to monitor their international money flows, right?

Henry Farrell, who sounds like he’s been itching for the chance to write a monster post about this, has a monster post about this over at Crooked Timber today. Here are the key parts:

Privacy International has filed complaints with umpteen European and non-European data regulators that SWIFT has illicitly shared European citizens? financial data with US authorities….The crucial enforcement authorities when it comes to issues like SWIFT aren?t the European Commission or the member state governments. In all probability, they?re the national level data protection authorities.

….While the issues involved touch on national security, SWIFT wasn?t cooperating with the relevant authorities on national security issues (the member states). Instead, it was more or less unilaterally deciding to cooperate with an authority outside the EU ? the US Treasury (and through Treasury, the CIA etc). SWIFT had informally told several member state central banks what was going on ? but central banks aren?t the relevant authority under any conceivable reading. Thus (and I repeat that I?m not a lawyer), it would seem to me to be to be pretty hard to make the case that this activity would fall under the national security exemption to European data protection law.

….So what?s likely to happen now? There are a number of ways in which this might develop….Most likely in my opinion, is that this is going to result in enforcement action by the EU data protection authorities ? and to new laws in the medium term. It seems very unlikely indeed to me that SWIFT?s cooperation with US authorities was legal under European law. The organization could find itself in a lot of hot water.

In other words, although the Treasury Department (probably) didn’t break any U.S. laws, it’s quite possible that SWIFT did break some European laws ? and that they’ll be forced to stop providing information to Treasury unless European laws are changed, a process that’s both lengthy and uncertain of success. Read Henry’s full post for more detail and more nuance.

So does this mean the Times shouldn’t have published this story? The arguments cut both ways. On the one hand, it looks like it might have done real damage to an important anti-terrorism program. On the other hand, it looks like the damage is directly related to the fact that the program probably violated the law ? clearly a subject of considerable public interest. On the third hand, it was European law involved, not U.S. law, and the original Times story barely even mentioned possible violation of European law as a motivation for running the story.

In any case, that’s the state of play. Stay tuned.