¹ The program is also known as “SWIFT Program.” See Connorton, Patrick, Tracking Terrorist Finance through SWIFT: When U.S. Subpoenas and Foreign Privacy Law Collide, 76 Fordham L. Rev. 283 (2007); as to the details of the program, see id., 288; furthermore, see U.S. Treasury Department, TFTP Fact Sheet, available at: http://www.ustreas.gov/offices/enforcement/tftp.shtml (last visited Oct. 24, 2010).Google Scholar

² See Connorton, supra, note 1, at 283, 288.Google Scholar

³ See id. at 284, 291.Google Scholar

⁴ The first result of this cooperation was a compromise of June 27, 2007. See id. at 294. Then, in 2009, the (first) SWIFT Agreement was concluded: Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, 2010 O.J. (L 8) 11.Google Scholar

⁵ (Second) Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, 2010 O.J. (L 195) 5.Google Scholar

⁶ From a (German) jurisdictional perspective, the following cases recently decided by the Bundesverfassungsgericht (Federal Constitutional Court) are paradigmatic: Air Security Law Case, Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 1 BvR 357/05, Feb. 15, 2006, 115 BVerfGE 118 (on the constitutionality of a law authorizing the destruction of a hijacked airplane); Data Retention Case, BVerfG, Case No. 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08, March 2, 2010, 2010 NJW 833 (on the constitutionality of a law obliging telecommunication service providers to store customer data).Google Scholar

⁷ From a (European) jurisdictional perspective, the different Kadi cases decided recently by the General Court (formerly Court of First Instance) and the European Court of Justice respectively give a stunning insight into this issue: Case T-315/01, Kadi v. Council and Commission, 2005 E.C.R. II-03649 on the legality of the EU practice of listing in accordance to a UN Security Council Resolution; set aside by Case C-402/05 P and C-415/05 P, Kadi et al. v. Council and Parliament, 2008, E.C.R. I-06351; most recently Case T-85/09, Kadi v. Commission, 2010 (available at: http://eur-lex.europa.eu).Google Scholar

⁸ See the current controversy in Germany about so-called web mapping services such as Google Street View and so-called social networks such as Facebook and the related privacy concerns; see, furthermore, some prominent recent decisions in the very same area, among these are: Online Search Case, BVerfG, Case No. 1 BvR 370/07 and 1 BvR 595/07, 120 BVerfGE 274 in which the Court develops the basic right to the guarantee of confidentiality and the integrity of information technological systems as well as the Data Retention Case, supra, note 6.Google Scholar

⁹ As to detailed background information about SWIFT, see Connorton supra note 1, at 283, 287; furthermore, see the official website of SWIFT (www.swift.com); anyway, the SWIFT-Code should be commonly known in the context of, at least international, wire transfers.Google Scholar

¹⁰ See, e. g., Agreement on Mutual Legal Assistance Between the European Union and the United States of America, 2003 O.J. (L 181) 34.Google Scholar

¹¹ For a brief outline of this part of the SWIFT saga, see the article EU-Parlament kippt SWIFT-Abkommen, Spiegel online, Feb. 11, 2010, available at: http://www.spiegel.de/politik/ausland/0,1518,677232,00.html (last visited Oct. 24, 2010).Google Scholar

¹² For general information about the TFTP, see Connorton, supra, note 1, 288 as well as the corresponding TFTP Fact Sheet, supra, note 1.Google Scholar

¹³ TFTP Fact Sheet, supra, note 1.Google Scholar

¹⁴ Exec. Order No. 13224. 66 Fed. Reg. 49079 (Sept. 23, 2001), georgewbush-whitehouse.archives.gov.Google Scholar

¹⁵ Id. at Section 7.Google Scholar

¹⁶ TFTP Fact Sheet, supra, note 1.Google Scholar

¹⁷ Id.; see also Connorton, supra, note 1, 283, 288.Google Scholar

¹⁸ See, e. g., Mutual Assistance Agreement, supra, note 10.Google Scholar

¹⁹ Connorton, supra, note 1, at 284.Google Scholar

²⁰ For an outline of this part of the SWIFT saga, see id. at 290.Google Scholar

²¹ See, supra, note 4.Google Scholar

²² SWIFT-I Agreement, supra, note 4.Google Scholar

²³ The corresponding authorization of the Department of the Treasury can be found in Executive Order 13224, supra, note 14, Section 6.Google Scholar

²⁴ Explicitly acknowledged by the Preambles of both Agreements; see id., paragraphs 4 and 5 respectively.Google Scholar

²⁵ Council Decision on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, 2010 O.J. (L 8) 9, Preamble paragraph 1.Google Scholar

²⁶ Id.Google Scholar

²⁷ See, e.g., the critical Recommendation of the Committee on Civil Liberties, Justice and Home Affairs on the proposal for a Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program, Eur. Parl. Doc. 0178 (2010), available at: http://www.europarl.europa.eu.Google Scholar

²⁸ A valuable overview of the concerns and the related criticism is provided by the European Parliament Resolution of 5 May 2010 on the Recommendation from the Commission to the Council to authorize the opening of negotiations for an Agreement between the European Union and the United States of America to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing, Eur. Parl. Doc. 0129 (2010), available at: http://www.europarl.europa.eu.Google Scholar

²⁹ Id.Google Scholar

³⁰ See Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, 2010 O.J. (L 195) 3, Preamble paragraph 1.Google Scholar

³¹ See (Draft) Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, available at: http://register.consilium.europa.eu/pdf/en/10/st11/st11222.en10.pdf.Google Scholar

³² Council Decision on the signing, on behalf of the Union, of the Agreement between the European Union and the United States of America on the processing and transfer of financial messaging data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, 2010 O.J. (L 195) 1.Google Scholar

³³ European Parliament legislative resolution of 8 July 2010 on the draft Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, Eur. Parl. Doc. 0279 (2010), available at: http://www.europarl.europa.eu.Google Scholar

³⁴ Recommendation of the Committee on Civil Liberties, Justice and Home Affairs on the draft Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, Eur. Parl. Doc., 0224 (2010), available at: http://www.europarl.europa.eu.Google Scholar

³⁵ See Decision, Council, supra, note 30.Google Scholar

³⁶ See Decision, Council, supra, note 25, Preamble.Google Scholar

³⁷ Furthermore, see id., Article 3.Google Scholar

³⁸ SWIFT-I Agreement, supra, note 4, Preamble, paras. 3, 4, 5.Google Scholar

³⁹ Id. at para. 6.Google Scholar

⁴⁰ See Agreement, Mutual Assistance, supra, note 10.Google Scholar

⁴¹ For a valuable overview on the relevant concerns and criticism, see Recommendation of the Committee on Civil Liberties, Justice and Home Affairs, supra, note 27; furthermore, see Resolution, European Parliament, supra, note 28.Google Scholar

⁴² See Decision, Council, supra, note 30, Preamble.Google Scholar

⁴³ Id. at paras. 6 and 7.Google Scholar

⁴⁴ SWIFT-II Agreement, supra, note 5, Preamble, para. 3.Google Scholar

⁴⁵ Id. at para. 6.Google Scholar

⁴⁶ See, supra, note 10.Google Scholar

⁴⁷ See the Opinion of Advocate General Léger in the Passenger Name Record Case, C-317/04, European Parliament v. Council and Commission, 2006, E.C.R. I-04721. Herein, Léger advocates for a reduction of the intensity of the judicial review with regard to the proportionality test in the context of security matters.Google Scholar

⁴⁸ The reaction of the European Court of Justice to Léger's proposal can be seen, among others, in Case C-402/05 P and C-415/05 P, supra, note 7, where the Court basically rejects this conception.Google Scholar

⁴⁹ Data Retention Case, supra, note 6.Google Scholar

⁵⁰ Id. at 833.Google Scholar