Facebook court judgement threatens Safe Harbour data-sharing agreement with US

The European Court of Justice (ECJ) could torpedo the EU/US Safe Harbour agreement following the US National Security Agency's (NSA) mass surveillance on EU citizens using Facebook data

The European Court of Justice (ECJ) will give its final judgement in the case against the Irish data protection commissioner Helen Dixon and Facebook on 6 October 2015 at 9.30am.

The judgement could have profound implications for the high-tech relationship between the US and the European Union (EU), if it rules as illegal the Safe Harbour agreement that permits US corporations to send European data to the US.

The Safe Harbour agreement is at the heart of the case, because Facebook – the other defendant – cannot use its US-based cloud storage without the consent of the EC through the Safe Harbour agreement.

The case was brought by the Austrian law student Max Schrems, 27. He challenged the legality and effectiveness of the EU/US Safe Harbour data-sharing agreement.

Schrems asked Irish data protection commissioner Helen Dixon to investigate Facebook, which has a European base in the Republic of Ireland. Dixon refused and Schrems went to the Irish High Court, in effect to seek a judicial review.

NSA used Safe Harbour data for ‘mass surveillance’

In a judgement scathing of the data protection commissioner, Irish High Court judge Gerard Hogan found the US was using Safe Harbour to impose mass surveillance on the citizens of Europe through its Prism programme.

He wrote that "only the naive or the credulous could really have been greatly surprised over these forms of mass surveillance".

The judge further found “that personal data transferred by companies such as Facebook Ireland to its parent company in the United States is thereafter capable of being accessed by the NSA in the course of a mass and indiscriminate surveillance of such data.

"Indeed, in the wake of the Snowden revelations, the available evidence presently admits of no other realistic conclusion.”

Ireland refers Facebook dispute to European Court of Justice

Judge Hogan referred the matter to the ECJ, the highest court in the EU. That court does not go back to the facts, but takes them as found in the Irish Court, and looks at how they relate to EU law.

Two weeks ago the judge advocate general on the case – French jurist Yves Bot – advised the court that the US was, as Judge Hogan had found, using mass surveillance via the NSA, to take European data; and that the Safe Harbour agreement did not protect European data.

This week the US government launched a stinging attack on judge Hogan's facts and Yves Bot's opinion, via its ambassador in Brussels, Anthony Gardner.

US ‘risked perjury’ if it gave evidence

The ambassador said there had been "no actual fact-finding in this case". Gardner added: "The US does not and is not engaged in indiscriminate surveillance of anyone, including ordinary European citizens."

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This caused a furious reaction at the court where an official – who wished to remain anonymous – said the US failed to exercise its right to make its case during the hearing.

"The US had a proper and legal opportunity to make it's case at the Irish Court. The procedures of the European court are well-known to the US authorities," he said.

Speaking to Computer Weekly, plaintiff Max Schrems was more cynical.

"If the US had appeared in Dublin, they would have had to swear their evidence under oath. They would not be able to deny Prism without committing perjury," he said.

The problem for ambassador Gardner is that both the US government and the UK government have publicly acknowledged Prism. That programme is a mass surveillance programme, the full workings of which were originally disclosed in the Guardian in 2013 by NSA whistleblower Edward Snowden.

Court reacts with unprecedented speed

Dai Davis, a solicitor who specialises in information technology law, said he cannot remember a case where the judgement has followed so fast on the judge advocate's opinion.

"I do speculate that the final judgement will closely follow the judge advocate's opinion," he said.

The judgement is bound to make an impact on current negotiations between the US and the EU, about the renewal of Safe Harbour, underway in Brussels.

Jim Killock, executive director of the Open Rights Group – a group campaigning against surveillance and censorship – said Safe Harbour rules were ineffective.

“Safe Harbour is in an untenable position, claiming to protect European citizens’ privacy right while the USA places everyone under mass surveillance," said Killock.

"The advocate’s opinion shows that the court is considering the right issues, so we hope they will produce a strong judgment that insists on our right to protection of our privacy when using US companies’ services."

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