Facebook is difficult a High Court judgement, which discovered the info of EU residents was susceptible to interception by US intelligence companies as a result of it’s extra involved about its look than its contents, Ireland’s most senior court docket heard yesterday.
The social media firm is opposing a High Court choice which refers 11 questions elevating questions in regards to the legality of information transfers between Europe and the US, to the European Court of Justice (CJEU).
Michael Collins SC, appearing for the Irish information safety commissioner, Helen Dixon, instructed 5 Supreme Court judges Facebook was making an attempt to move off potential findings by the CJEU that information transfers between the EU and the US, didn’t meet EU regulation.
“The whole reason for Facebook being here is that the whole judgement will be referred to the European Court, and they don’t want the court to make a binding decision,” he mentioned.
He was talking on the second day of a three-day listening to at Dublin’s Supreme Court, the most recent listening to in a long-running authorized battle with Austrian lawyer Max Schrems.
Schrems has accused Facebook of sharing his private information, together with that of different Facebook customers, with the US National Security Agency (NSA), in breach of European regulation.
Mass and indiscriminate surveillance
Facebook mentioned on 21 January it objected to findings of truth within the judgment made by choose Caroline Costello, together with a discovering that the US intelligence companies are engaged in “mass and indiscriminate surveillance”.
The social media firm argues the High Court did take note of proof from Facebook’s skilled witnesses that there have been satisfactory safeguards in place within the US to guard the privateness of European residents’ information, Collins instructed the judges.
But he instructed the Supreme Court the High Court had heard in depth proof from Facebook’s skilled witnesses on the significance of US intelligence gathering, and on the financial significance of sharing between the EU and US.
“When you are dealing with a case like this, no judgement can cover all of the evidence,” he mentioned. “The argument is that she was not conscious of this, that there was some deficiency.
“It is difficult to understand what criticism could be made.”
Costello’s ruling – issued in October 2017 and revised in April 2018 – referred to the systematic safeguards and oversight of the intelligence service in her judgement, the court docket heard.
These included PDP 28, a presidential directive issued by President Obama on surveillance and US oversight our bodies together with the Privacy and Civil Liberties Oversight Board (PCLOB), in addition to the Senate Intelligence and Judiciary Committees.
“It is difficult to understand how she can be said not to have taken into account the safeguards there,” he mentioned.
Judge correctly thought-about Privacy Shield
Collins mentioned Facebook was mistaken to argue the High Court choose, Costello, didn’t pay sufficient consideration the European Commission’s choice on Privacy Shield, which discovered there have been satisfactory protections for EU residents’ information within the US.
“The idea that she did not somehow consider the provisions of the Privacy Shield is a nonsense, she spent five weeks scrutinising it,” he mentioned.
Unless the Supreme Court determined to learn all of the related EU and US regulation and take its personal view, the right course is to take heed to consultants who can examine the strengths of EU and US regulation, the court docket heard.
“The court has the benefit of expert witnesses and that is why it is a finding of fact,” mentioned Collins. “There was very little dispute among the experts what US law actually was.”
Collins mentioned it was very obscure what Facebook is asking the Supreme Court to do in regards to the High Court’s findings.
Facebook is objecting to presentation
Brian Murray SC, additionally representing the Data Protection Commissioner, mentioned most of Facebook’s complaints had been involved with the best way the High Court introduced its findings, fairly than factual errors.
“Most are arguments based on complaints regarding expression, presentation, emphasis or indeed the optics of how the trial judge expressed her views,” he mentioned.
“A number of the complaints are directed to the content … That more should have been said on the US Administrative Procedures Act (APA), more time should have been spent on motions of summary judgement and more time should have been spent on Clapper [ALCU v Clapper].”
“It is not clear what that ‘more’ is, and what the court should have said,” he mentioned. “I suggest that Facebook is almost inviting you to attend a conference and write a critique of the judgment. It’s all very interesting, but how does it fit into our legislative system?”
Supreme Court choose Justice Peter Charleton mentioned that whereas he was not denigrating Costello’s findings, it’s only one opinion of what US regulation offers.
“There may be circumstances where another body is in a much better position to find out what is actually happening [in US law] than a judge sitting in this building,” he mentioned.
High Court referral “cannot be appealed”
Collins mentioned that below Irish regulation, it was not open to the Supreme Court to overrule the High Court’s referral to the European Court of Justice.
“In my respectful submission, there is no ground that the court can vary the findings of fact which are the necessary predicate to the reference and a necessary part of the reference,” he mentioned.
He in contrast altering the findings of truth within the judgement to setting off a hand grenade. It would have a knock-on impression on the contents of the referral to the European Court of Justice, and the choice the European Court.
Commission choice on Privacy Shield “can be challenged”
The European Commission’s choice on Privacy Shield discovered the oversights of the intelligence companies had been satisfactory and that EU residents had rights to lift complaints via a US ombudsman, but it surely was not immune from authorized problem, mentioned Collins.
“No commission decision can render itself immune from challenge by saying it found the law of another country is equivalent to European law, therefore you cannot challenge it. That cannot be right,” he mentioned.
Judge Costello was “entirely in her jurisdiction to make the reference [to the European Court] that she shared the concerns of Schrems,” he mentioned.
“As a matter of principle, this court can’t entertain arguments with the judgements findings on privacy shield,” he mentioned. “It is impossible to see constructively what this court can do.”
Paul Gallagher SC, representing Facebook, has not recognized something within the choose’s description that he thinks is mistaken, aside from the conclusion. “That part of judgment must remain undisturbed,” Collins instructed the court docket.
“At the end of the day, it is in our submission impossible to see how these findings based on undisputed facts can present a basis for appeal,” he mentioned.
Need for clear and exact guidelines on interception
“There must be clear and precise rules, so that persons whose data is concerned has to have a sufficient safeguard to protect data,” he mentioned.
Safeguards had been much more necessary when individuals’s non-public information had been being scanned routinely by computer systems for choice by the US intelligence companies, he mentioned.
The court docket has reserved judgement.