The US government has asked the High Court to take account of a “significant” decision last month stopping the collection of a certain category of personal data by the US National Security Agency,
The US wants that development considered before the Irish court rules on the Data Protection Commissioner’s case concerning the validity of EU-US data transfers.
Ms Justice Caroline Costello last March reserved judgment on the Commissioner’s case, which has potentially enormous implications for EU-US trade and privacy rights of millions of EU citizens.
Commissioner Helen Dixon essentially wants the judge to ask the Court of Justice of the EU to decide the validity or otherwise of European Commission decisions approving data transfer channels known as standard contractual clauses (SCCs).
Her case is against Facebook Ireland – because Facebook’s European headquarters are here - and Austrian lawyer Max Schrems who for different reasons oppose referral. The US government among several parties joined as amici curiae, assistants to the court on legal issues.
At the request of the US, the judge listed the case for mention when Eileen Barrington SC, for the US, said a “significant development” last April affects one of the matters before the court.
Facebook agreed the court should have regard to this development, the Commissioner was neutral and only Mr Schrems disputed its relevance, she said.
The development concerns communications issued by the NSA last April - after the High Court reserved judgment - about ceasing certain data collection activities under its Upstream internet programme. The NSA communication followed an opinion of the US Foreign Intelligence Surveillance Court (FISC).
While the NSA has historically been authorised to acquire communications to, from, or “about” a target under Section 702 of the Foreign Intelligence Security Act through its Upstream internet collection, it said it would no longer collect communications “about” a target.
Ms Barrington said the US wanted the court informed about this “significant curtailment” of data collection and to receive the relevant correspondence and documents.
While Mr Schrems argued the case was about interpretation of the relevant US law, and data collection practice is not relevant, the NSA release is a “legal development”, counsel argued.
If a reference is to be made to the CJEU, that should not be based on out of date information about the US regime, she added.
Brian Murray SC, for the Commissioner, said, while neutral on the US application, if the court agreed to receive the material, the Commissioner had a “strong” position and wished to point out the US decision referred to a relaxation of the existing regime for the benefit of “US citizens”.
Paul Gallagher SC, for Facebook, said it believed the court should see the information. His side considered the material a matter of law but, even if it was only a matter of practice, it was still relevant.
Eoin McCullough SC, for Mr Schrems, objected “as a matter of principle” the matter was being raised by the US government, not a party to the case and only an amicus, after the case had concluded.
While appreciating the court wants to see everything, Mr Schrems and his experts may wish to comment on the material which might reopen a controversy over a number of matters, he said.
There were difficulties just noting the FISC decision itself without expert assistance about what it means, he added. The FISC had found the NSA guilty of an “institutional lack of candour” , there were issues whether other US bodies have access to minimisation information and the decision raised more questions than it answers.
In any event, all of this related to practice, Section 702 of the Foreign Intelligence Security Act stands as the law and the court should be looking at the law of the US. He agreed, had this matter been raised before judgment was reserved, there would have been no dispute concerning its relevance.
Colm O’Dwyer, for the Washington-based Electronic Privacy Information Center, also an amicus in the case, said it is neutral on the US application but noted amici were previously prevented from providing evidence.
In exchanges between the judge and counsel, it was agreed the appropriate way to proceed was to have Facebook, as a party to the case, introduce the information.
The judge said it would be “undesirable” for her to continue referring to “about” communications in her judgment when there has been a change in practice in the US and she would read the information. She will also hear submissions on Friday about how it should be addressed by the parties and amici.