Privacy law: A hearing later this month at Europe’s top court in Kirchberg will have a major impact on a transatlantic data deal, writes Antoin O Lachtnain.
In late 2012, Max Schrems, a privacy advocate and member of the Europe v Facebook group, requested that the Irish Data Protection Commissioner investigate the alleged sharing of European Facebook users’ information with the United States National Security Agency (NSA), in the light of the Snowden revelations.
These revelations suggest that Facebook and the US government had violated the Safe Harbour arrangement, which is aimed at guaranteeing the privacy of EU citizens and regulates the transfer of personal data from the European Union to the United States. When the Irish Data Protection Commissioner refused to investigate the case, Schrems appealed to the Irish High Court. The Court’s decision centred around whether the European Commission’s decision on Safe Harbour in 2000 was binding and therefore not subject to investigation by the Irish Data Protection Commissioner.
The Schrems case, to which EDRi-member Digital Rights Ireland is attached as an amicus curiae, will have a hearing at the Court of Justice of the European Union (CJEU) on 24 March. The role of an amicus curiae – Latin for “friend of the court” – is to assist the court in determining an issue before it, particularly where the amicus has some special expertise in the area.
Because this is an issue of European law, with implications for all countries in the European Union, the Irish judge referred the matter to the CJEU. All countries of the EU are entitled to make submissions in relation to this matter, and the European Data Protection Supervisor (EDPS) has also been requested by the Court to make submissions ahead of the oral hearing.
The Court has asked to hear submissions in relation to how Safe Harbour is implemented, and what provisions have been put in place to ensure the protection of the privacy of European citizens at the hearing that will take place in Luxembourg on 24 March.
The case hinges upon the Safe Harbour Decision of the European Commission, to allow for transfers of data between Europe and the United States, the status of the decision in the light of the Snowden Revelations, and the role of national data protection officials in policing the Safe Harbour arrangements. The hearing is likely to examine whether proper consideration has been given to the human rights aspects of the Safe Harbour Decision.