The Privacy Act Executive Order

by Dennis Crouch

I teach internet law – and so I’m working through the Privacy Act statement in President Trump’s recent Executive Order: Enhancing Public Safety in the Interior of the United States.

Privacy Act.  [Federal] Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

The basics of the Privacy Act is that it adds somewhat to the constitutional privacy protections already in place by limiting government collection, maintenance, use, and dissemination of personally identifiable information. 5 U.S.C. § 552a.  The law also facilitates individuals access to their information and to request corrections. Note here that the Privacy Act has several major exceptions – such as law enforcement and national security – that allow for more unlimited data activities.

By its term, the individual protections offered by the Privacy Act are to US Citizens and lawfully admitted permanent residents.  So, the Trump order itself does not contradict the statute. Some agencies, however, have been providing aspects of privacy-act protections to non-citizens and permanent residents.  The order appears to force agencies to stop that approach and instead expand governmental data collection and dissemination of information related to non-Americans.  Of course, European countries take online data privacy much more seriously than we do here, and the new approach may well create a significant further hiccup for American companies that operate overseas (e.g., does your US firm website reach Europe?).  The setup here also further facilitates old spy-agency agreements to share information on each other’s citizens.

I may still be stuck in the globalist view of civil liberties, but my perspective is that the US should not take the general stance of providing civil liberties to its citizenry while affirmatively trampling those same civil liberties for non-citizens.  Exceptions may arise, but as a general matter, no.