Facebook’s objections to court concerns over privacy more about ‘optics’ than facts

Mass and indiscriminate surveillance

Facebook said on 21 January it objected to findings of fact in the judgment made by judge Caroline Costello, including a finding that the US intelligence services are engaged in “mass and indiscriminate surveillance”.

The social media company argues that the High Court did not take into account evidence from Facebook’s expert witnesses demonstrating  there were adequate safeguards in place in the US to protect the privacy of European citizens’ data.

Collins told the Supreme Court that the High Court had heard extensive evidence from Facebook’s expert witnesses on the importance of US intelligence gathering, and on the economic importance of sharing between the EU and US.

“When you are dealing with a case like this, no judgement can cover all of the evidence,” he said.

The argument is that she was not aware of this, that there was some deficiency, but it is difficult to understand what criticism could be made.

Costello’s ruling – issued in October 2017 and revised in April 2018 – referred to US safeguards and oversight of the intelligence services gathering of electronic data, the court heard.

These included PDP 28, a presidential directive issued by President Obama on surveillance and US oversight bodies including the Privacy and Civil Liberties Oversight Board (PCLOB), as well as the Senate Intelligence and Judiciary Committees.

“It is difficult to understand how she can be said not to have taken into account the safeguards there,” he said.

Judge properly considered Privacy Shield

Collins said Facebook was also wrong to argue the High Court judge, Costello, did not pay enough attention the European Commission’s decision on Privacy Shield, which found there were adequate protections for EU citizens’ data in the US.

“The idea that she did not somehow consider the provisions of the Privacy Shield is a nonsense, she spent five weeks scrutinising it,” he said.

Unless the Supreme Court decided to read all the relevant EU and US law and take its own view, the proper course is to listen to experts who can compare the strengths of EU and US law, the court heard.

“The court has the benefit of expert witnesses and that is why it is a finding of fact,” said Collins. “There was very little dispute among the experts what US law actually was.”

Collins said it was very difficult to understand what Facebook is asking the Supreme Court to do about the High Court’s findings.

Facebook is objecting to presentation

Brian Murray SC, also representing the Irish Data Protection Commissioner, said most of Facebook’s complaints were concerned with the way the High Court presented its findings, rather than factual errors.

“Most are arguments based on complaints regarding expression, presentation, emphasis or indeed the optics of how the trial judge expressed her views,” he said.

“A number of the complaints are directed to the content ... That more should have been said on the US Administrative Procedures Act (APA), more time should have been spent on motions of summary judgement and more time should have been spent on Clapper [ACLU v Clapper].”

“It is not clear what that ‘more’ is, and what the court should have said,” he said. He told the judges: “I suggest that Facebook is almost inviting you to attend a conference and write a critique of the judgment. It’s all very interesting, but how does it fit into our legislative system?”

Supreme Court judge Justice Peter Charleton said that while he was not denigrating Costello’s findings, it is only one opinion of what US law provides.

“There may be circumstances where another body is in a much better position to find out what is actually happening [in US law] than a judge sitting in this building,” he said.

High Court referral “cannot be appealed”

Collins said that under Irish law, it was not open to the Supreme Court to overrule the High Court’s referral to the European Court of Justice.

“In my respectful submission, there is no ground that the court can vary the findings of fact which are the necessary predicate to the reference and a necessary part of the reference,” he said.

He compared changing the findings of fact in the judgement to setting off a hand grenade. It would have a knock-on impact on the contents of the referral to the European Court of Justice, and the decision the European Court.

Commission decision on Privacy Shield “can be challenged”

The European Commission’s decision on Privacy Shield found the oversights of the intelligence services were adequate and that EU citizens had rights to raise complaints through a US ombudsman, but it was not immune from legal challenge, said Collins.

“No commission decision can render itself immune from challenge by saying it found the law of another country is equivalent to European law, therefore you cannot challenge it. That cannot be right,” he said.

Judge Costello was “entirely in her jurisdiction to make the reference [to the European Court] that she shared the concerns of Schrems,” he said.

“As a matter of principle, this court can’t entertain arguments with the judgement's findings on privacy shield,” he said. “It is impossible to see constructively what this court can do.”

Paul Gallagher SC, representing Facebook, has not identified anything in the judge’s description that he thinks is wrong, apart from the conclusion. “That part of judgment must remain undisturbed,” Collins told the court.

“At the end of the day, it is in our submission impossible to see how these findings based on undisputed facts can present a basis for appeal,” he said.

There must be clear and precise rules so that people have sufficient safeguards to protect data. Safeguards were even more important when people’s private data were being scanned automatically by computers for selection by the US intelligence services, he said.

The court has reserved judgement.