US government bids to join ‘potentially significant’ data case

The US government wants to be joined to legal proceedings here involving issues of huge significance for privacy rights of EU citizens, arising from the internet transfer of their personal data to the US.

In the proceedings, the Data Protection Commissioner has reached a preliminary view, subject to considering any further submissions, that there are “well-founded” claims the personal data privacy rights of EU citizens are being breached arising from transfer of their personal data to the US where it might be accessed and processed by US state agencies for national security purposes in a manner incompatible with the Charter of Fundamental Rights of the EU.

Commissioner Helen Dixon now wants the Commercial Court to refer key issues for determination by the Court of Justice of the EU (CJEU) before her office makes a final decision on the complaint by Austrian student Max Schrems alleging breach of his data protection rights by Facebook Ireland. The company denies any breach of Irish or EU law.

Mr Justice Brian McGovern yesterday agreed to fast-track the commissioner’s case against Facebook Ireland and Mr Schrems and to hear, on June 27, the commissioner’s application for referral of issues to the CJEU for determination. Those concern the validity of various European Commission decisions approving standard contractual clauses (SCCs) under which Facebook Ireland and others make data available to the US.

SCCs are the main channel relied on to transmit data since the CJEU ruled last year the 15-year-old Safe Harbour arrangement — which allowed some 4,500 US companies transfer personal data to the US — violated fundamental rights of EU citizens to privacy and data protection.

Michael Collins, for the commissioner, said the case is of enormous urgency, with huge potential impact for commercial trade and the rights of parties in relation to processing of their data. As no national court can decide the validity of the commission decisions on SCCs, the CJEU must determine that, he said.

Paul Gallagher, for Facebook Ireland, said the case was “considerably more complicated” than outlined.

Eoin McCullough, for Mr Schrems, did not oppose the case being fast-tracked but said Mr Schrems has concerns about whether another reference to the CJEU was necessary.

Eileen Barrington, for the US government, said it would be applying to be joined as an amicus curiae (assistant to the court on legal issues) as the case has “potentially significant” implications for US authorities and companies.

Maurice Collins, for the ESA software alliance, representing companies including Apple, Microsoft, and Intel, said it also wanted to be joined as an amicus curiae as his clients use SCCs to transfer data to the US and elsewhere.

Paul Anthony McDermott, for Ibec and the US Chamber of Commerce, said the case has significance for thousands of companies in the context of trade with the US.

In proceedings initiated in 2013, Mr Schrems challenged the then-commissioner’s refusal to investigate his complaint against Facebook Ireland, made after former NSA worker Edward Snowden claimed Facebook and other US firms were being forced to make their personal information, including EU user data, available to US intelligence.