u.s. government wants to step into european facebook privacy legal challenge

european privacy campaigner max schrems’ legal challenge to facebook has already been credited withthe demise ofa fifteen-year-old data transfer arrangement between the region and the u.s. last year, causing huge uncertainty for transatlantic data flows aftersafe harbor was suddenly struck down. but schrems’ legal powderis far fromspent.today’s interesting development in the saga is that the u.s. government has asked the irish courtto be joined as an amicus in the case likely, reckonsschrems, in order to defend u.s. surveillancelaws before the court, given it is those laws that have been found to be in conflict with europeans’ fundamental rights, causing all this trouble in the first place.
in schrems’original 2013 legal challenge, whichresulted in safe harbor being struck down last fall, he argued that u.s. government mass surveillanceprograms, which nsa whistleblower edward snowden revealed to be miningdata fromconsumer web services such asfacebook, invalidated the long-standing eu-us data flow deal by contravening european data protectionlaws. europe’stop court, the cjeu, agreed.after the cjeu decisionschrems filed new complaints relating to facebook and the nsa’s prism data collection program (the one apparently looping in data from consumer services such as facebook), including withthe irish dpa whichlast monthsaid it would be referring the matter tothe irish high court. and it’s here the u.s. government wants to step in as an amicus curiae petitioning the court to be able to offer its view on the matter.schrems says the moveunderlines the significance of the case to the u.s. government.attempts to replace safe harbor with a so-called eu-us ‘privacy shield’are ongoing but havebeen roundly criticized as containing the same fundamental flaws that scuppered safe harbor.schrems has arguedthere’s nothing to prevent another legal challenge to the privacy shield on the same mass surveillance grounds that holed safe harbor. the influentialheads of european member states’ data protection agencies, the article 29 working group, also remain unhappy with the current draft of the agreement.in the meantime the more than 4,000 companies whichwere using safe harbor to govern their transatlantic data flows have had to fall back on alternativemechanisms. but there’s no firm legal footing here either;schrems’ latest legal challenge has thrown doubt onthe legality of one of these methods so-called “model contract clauses”.it’s the legality of these contractsthe irish high court will be considering, even asthe u.s. government aimsto chip in with its two cents on u.s. surveillance law.the u.s. governmenthas previously made public statements denying it engages in mass surveillance arguing instead thateuropean courts havemisinterpreted itsintelligence practices. however if itisallowed to become an amicus curiaeit will have to make suchassertions under oath something schremsviewsas an opportunity, noting that whoever gives evidence on behalf of the u.s. government could face severe consequences if they do not respond truthfully to questions in court.
“this may be a unique opportunity for us. i therefore very much welcome that the us government will get involved in this case,” he writes in a statementon the development. “this is a huge chance to finally get solid answers in a public procedure. i am very much looking forward to raise all the uncomfortable questions on us surveillance programs in this procedure. it will be very interesting how the us government will react to the clear evidence already before the court.”so this iscertainly lining up to be a * gets popcorn * moment assumingthe us government does end up getting agrilling fromschrems’lawyershttps://twitter.com/maxschrems/status/742285757444947968
other entities applying to join the procedure include theamerican chamber of commerce, the business software alliance and the irish business and employers confederation, according to schrems’ europe vs facebook campaign group.the first preparatory hearing for the case took place today in dublin.