US privacy group informs High Court on adequacy of US law in protecting EU citizens’ data
1 March 2017
The High Court heard today from US non-governmental organisation EPIC (Electronic Privacy Information Center) in the case of Data Protection Commissioner v. Facebook & Max Schrems, on privacy protection for transatlantic data transfers.
EPIC and a number of other parties have been permitted to join the case as amici curiae, or “friends of the court”. Such amici can provide expertise and perspectives to assist the court in its deliberations. The US government is also appearing as an amicus in the case.
Legal rights group FLAC (Free Legal Advice Centres) represents EPIC in the case.
EPIC is providing expert evidence on whether personal data transferred by Facebook Ireland to Facebook US receives adequate legal protection. As an amicus curiae, EPIC can provide the High Court with a comprehensive assessment of the strengths and weaknesses of the US legal system as to how it protects the personal data of people resident in the EU, including Ireland, a perspective that might not otherwise be available to the court.
In today’s submission, counsel for EPIC focused on concerns around:
- Privacy protection for foreign communications and other personal data under U.S. surveillance law;
- Legal redress available to E.U. citizens who wish to challenge U.S. government surveillance and the interception of personal data.
It discussed a variety of mechanisms used by the US Government to access personal data transferred to the US, including Executive Orders.
EPIC addressed the inadequacy of privacy safeguards for EU citizens, stating that US privacy protections are limited in scope; that personal data and communications of non-U.S. persons are excluded from important U.S privacy safeguards; and that many privacy rules are subject to Executive Branch modification or repeal.
It also examined the lack of effective redress for EU citizens. EPIC says that US law does not provide EU citizens with effective redress for violations of their Charter rights arising from authorized surveillance. It believes remedies that permit challenges to unauthorized surveillance are effectively untenable, and that EU Citizens’ Data Protection rights of access and correction are strictly limited under the Judicial Redress Act and are subject to discretionary policies that are revocable by the Executive. Finally, EPIC said overarching barriers to redress are likely to preclude EU citizens’ legal claims involving US surveillance.
This is one of the first times an NGO such as EPIC has been granted leave to appear as an amicus curiae in an Irish court. EPIC’s legal counsel Alan Butler has travelled from the US to Ireland for the case.
FLAC provides representation in cases that have strategic value and that may effect positive social change, whether to vindicate human rights or to improve access to justice in Ireland.
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- FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal access to justice for all. As an NGO, FLAC relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work.
- FLAC offers basic legal information through its telephone information line (1890 350 250). Free legal advice is available to the public through a network of volunteer evening advice centres – more at www.flac.ie/help/. It also campaigns and does policy & law reform work on a range of issues including consumer credit, personal debt, fairness in social welfare law, public interest law and civil legal aid.
- EPIC is a public interest research centre based in Washington, DC, Established in 1994, EPIC focuses public attention on emerging privacy and civil liberties issues and seeks to protect privacy, freedom of expression, and democratic values in the information age. An independent organisation with no state funding, EPIC routinely files amicus briefs in federal courts, pursues open government cases, defends consumer privacy, organizes conferences and speaks before Congress and judicial organisations about emerging issues. More at www.epic.org
- In the case, the Data Protection Commissioner has asked the High Court to refer to the Court of Justice of the European Union the question of whether certain contracts, known as ‘standard contractual clauses’, protect the privacy rights of EU citizens when their personal data is transferred outside Europe. The Commissioner is suing two parties in the case: Facebook Ireland, and Austrian privacy campaigner and lawyer Max Schrems. Proceedings started on 7 February.
Standard contractual clauses have been approved by various European Commission decisions. They were designed to allow businesses to transfer the personal data of EU citizens to countries outside the European Economic Area while ensuring the citizens enjoyed equivalent privacy rights to those they have in the EU.
The case follows a landmark decision invalidating an international arrangement for transferring data in light of the U.S. surveillance regime. In the challenge by privacy advocate Max Schrems, the Court of Justice of the European Union found insufficient legal protections for the transfer of European data to the United States
- 5. You can read more about the case and FLAC’s involvement as legal representative in in our briefing note: http://www.flac.ie/publications/briefing-note-dpc-v-facebook-ireland-anor/
- Amicus curiae translates as ‘friend of the court’. The amicus is not a party to the case. Its role is to provide expertise to the court as an impartial third party and assist the Court in arriving at its decision. There has been limited use of the amicus mechanism in the Irish courts, although the practice is growing. This case is notable in that the appointment of an NGO as amicus is rare, and rarer still is the appointment of a non-Irish amicus.
- Alan Butler is Senior Counsel at the Electronic Privacy Information Center (EPIC) in Washington, DC. In that capacity, Mr. Butler manages EPIC's appellate litigation, including the Amicus Program, and files briefs in emerging privacy and civil liberties cases before the U.S. Supreme Court and other appellate courts. Mr. Butler has argued on behalf of EPIC in privacy and open government cases. Mr. Butler has authored briefs on behalf of EPIC in significant privacy cases, including an amicus brief in Riley v. California that was cited in the Supreme Court's unanimous opinion upholding Fourth Amendment protections for cell phones. He has also authored briefs on national security, open government, workplace privacy, and consumer privacy issues.