Facebook urges Supreme Court to halt referral to European court over EU-US data transfers

The Court of Justice of the EU has been asked to decide “immensely” important issues about the validity of EU-US data transfers based on “extraordinary and incorrect findings” by the Irish High Court about the US legal system, Facebook has argued before the Supreme Court.

Facebook urges Supreme Court to halt referral to European court over EU-US data transfers

The Court of Justice of the EU has been asked to decide “immensely” important issues about the validity of EU-US data transfers based on “extraordinary and incorrect findings” by the Irish High Court about the US legal system, Facebook has argued before the Supreme Court.

Facebook disputes the High Court’s view that the Data Protection Commissioner (DPC) had raised “well founded” concerns, including about “mass indiscriminate processing” of data by US government agencies under the PRISM and Upstream programmes authorised there.

Facebook also disputes the US lacks a comprehensive data protection code for reasons including its Fourth Amendment protections apply only to US citizens and it operates rules restricting the ability of non-citizens to vindicate their data privacy rights.

The Supreme Court has begun hearing Facebook’s unprecedented appeal, listed for three days, aimed at halting the High Court referral to the CJEU.

DPC Helen Dixon is opposing the appeal and attended for its opening today before the five-judge court.

Paul Gallagher SC, for Facebook, said it was “no exaggeration” to say the case is of “immense” importance , not just for Facebook and other entities sending data to the US, but for the GDP of the EU as trade virtually every trade transaction between the EU and US has some digital element involving data transfer.

He said the referral to the CJEU was made in May 2018 by the High Court on a basis tantamount to making findings that US law breaches the essence of data privacy rights of EU citizens.

These were “extraordinary and incorrect findings” about the legal system of a foreign country, counsel said.

The High Court particularly failed to have regard to the Privacy Shield decision under which the European Commission approved the use of EU-US data transfer channels, he said.

There is no need for a reference because the Privacy Shield decision is binding, he argued. The CJEU should not be asked to make decisions of enormous consequence on foot of “findings” Facebook considered “potentially very damaging” and inconsistent with the Privacy Shield decision.

The appeal concerns an October 2017 High Court judgment by Ms Justice Caroline Costello and her subsequent referral in May 2018 of issues for determination by the CJEU.

The US government is involved in the appeal as an amicus curiae - assistant to the court on legal issues. It maintains US law provides adequate protections for EU citizens’ data privacy rights.

Ms Justice Costello’s judgment was given in proceedings brought by the DPC arising from complaints by Austrian lawyer Max Schrems that the transfer of his personal data by Facebook to the US breached his data privacy rights as an EU citizen.

The DPC case was taken against Facebook Ireland - because Facebook’s European headquarters are here - and Mr Schrems but no formal orders were sought against them and the core issue concerned the validity of data transfer channels known as Standard Contractual Clauses (SCCs).

Ms Justice Costello had directed a referral to the CJEU of 11 issues concerning the validity of European Commission decisions approving the SCCs.

The questions raise significant issues of EU law with huge implications.

The issues in Facebook’s appeal include whether there is any entitlement in the first place to appeal a reference to the CJEU.

Mr Gallagher argued there must be an entitlement to appeal over a referral based on what it contends are incorrect findings of fact with such enormous consequences.

The Privacy Shield decisions means there is no requirement for a reference, he also submitted.

Niamh Hyland SC, also for Facebook, said the court will have to consider the proportionality of various US law measures. There was “wholesale failure” by the High Court to adequately take into account evidence from experts for Facebook, including about the working of the US National Security Agency, she argued.

The appeal resumes tomorrow.

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