EU's top court asked to probe Facebook U.S. data
transfers
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[April 12, 2018]
By Conor Humphries and Julia Fioretti
DUBLIN/BRUSSELS (Reuters) - The ability of
firms such as Facebook to easily transfer Europeans' data to the United
States was plunged into legal limbo on Thursday when the Irish High
Court asked the EU's top court for a detailed assessment of whether the
methods were legal.
The Irish High Court referral, published on Thursday and due to be
submitted to the ECJ by the end of April, stems from a case brought by
an Austrian privacy activist against the methods used by Facebook to
store user data on U.S. servers following revelations in 2013 of mass
U.S. surveillance practices.
Cross-border data transfers are an integral part of companies' business
- be it for human resources purposes, completing credit card
transactions or storing people's browsing histories - but the referral
casts renewed uncertainty on the legal mechanisms underpinning billions
of dollars' worth of data transfers.
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The High Court's five-page referral asks the Court of Justice of the EU
(ECJ) if the Privacy Shield - under which companies certify they comply
with EU privacy law when transferring data to the United States - does
in fact mean that the United States "ensures an adequate level of
protection".
EU data protection law prohibits personal data being transferred to a
country with inadequate privacy protections.
Facebook has until April 30 to lodge an application to block the
referral. Paul Gallagher, a lawyer for the U.S. firm., said he was
considering whether to request a delay or a possible appeal.
Facebook is under scrutiny after it emerged the personal information of
up to 87 million users, mostly in the United States, may have been
improperly shared with political consultancy Cambridge Analytica.
Data privacy has been under major public scrutiny since the revelations
in 2013 by former U.S. intelligence contractor Edward Snowden of mass
U.S. surveillance caused political outrage in Europe.
Facebook CEO Mark Zuckerberg was grilled this week by U.S. lawmakers on
the privacy lapses, but came away mostly unscathed with little sign of a
consensus emerging on whether regulation was needed to safeguard
privacy.
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Austrian lawyer Max Schrems arrives at the Four Courts building in
Dublin, Ireland, October 3, 2017. REUTERS/Clodagh Kilcoyne/File
Photo
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PRIVACY SHIELD
The Privacy Shield was hammered out between the EU and the United States after
the Court of Justice of the EU (ECJ) struck down its predecessor on the grounds
that it did not afford Europeans' data enough protection from U.S. surveillance.
Irish High Court Judge Caroline Costello in October said she had decided to ask
the ECJ for a preliminary ruling in the case, but the scope of the referral only
became clear on Thursday.
Max Schrems, an Austrian law student who successfully challenged Safe Harbour -
Privacy Shield's predecessor - subsequently brought a case against another legal
instrument used by Facebook and other firms to transfer personal data to the
United States, so-called standard contractual clauses.
The High Court asked the ECJ whether personal data transferred from the EU to
the United States using such clauses, and the separate privacy shield, violated
Europeans' fundamental right to privacy.
"Given the case law, the question in this case does not seem to be if Facebook
can win it, but to what extent the Court of Justice will prohibit Facebook’s
EU-U.S. data transfers," Schrems said in a statement.
The Irish court also asked the ECJ whether European data protection authorities
ought to suspend data flows if the company moving the data outside the EU is
subject to "surveillance laws" that conflict with the EU's right to privacy.
Facebook has previously said the case could lead to a breakdown in transatlantic
data transfers that could knock EU economic output by up to 1.3 percent.
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A ruling from the ECJ is likely to take around 18 months.
(Reporting by Conor Humphries, writing by Julia Fioretti; editing by Robert-Jan
Bartunek and Alexandra Hudson)
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