Monday 16 December 2019

US bid to join Irish case challenging transfers of data from EU

Data Protection Commissioner Helen Dixon
Data Protection Commissioner Helen Dixon

Tim Healy

A LEGAL action by the Irish Data Protection Commissioner querying the validity of the main channels being used for EU-US data transfers is "of the utmost importance to the United States and to the broader public", the US government says.

An unprecedented application by the US to join the High Court action will be heard next month, alongside similar applications by major Irish, European and US business and civil liberties organisations.

Commissioner Helen Dixon initiated the case following her draft finding last month Austrian lawyer Max Schrems had raised "well-founded objections" to the validity of EU-US data transfer channels, known as Standard Contractual Clauses (SCCs).

Mr Schrems complained Facebook Ireland was transferring his data via SCCs to servers located in the US, where it was being processed, without ensuring sufficient protection for it as required under the Charter of Fundamental Rights of the EU.

Use of SCCs has been approved under various European Commission decisions. However, concerns whether SCCs accord with data protection rights of EU citizens have mounted since the Court of Justice of the EU (CJEU) last year struck down the previous EU-US Safe Harbour data transfer arrangement.

After a seven month investigation, Commissioner Dixon has made a draft finding SCCs also breach privacy and data protection rights of EU citizens.

In her proceedings against Facebook Ireland (because Facebook's European headquarters is based in Dublin), the Commissioner wants the High Court, if it shares her doubts about the validity of the SCCs, to ask the CJEU to decide that issue.

The case was briefly mentioned yesterday before Mr Justice Brian McGovern in the Commercial Court, the big business division of the High Court.

He fixed July 7 to hear various applications to be joined to it as amicus curiae (assistant to the court on legal issues). Some of these applications are being contested, the court was told.

Ronan Lupton BL, for Digital Rights Ireland, said, due to opposition from Mr Schrems, DRI was not pursuing its application to be joined.

The judge will hear joinder applications by the US government; Business Software Alliance (supported by the US Chamber of Commerce); Irish Business and Employers Confederation and Digital Europe, representing the European digital technology industry.

A further joinder application is jointly brought by the American Civil Liberties Union and Irish Council for Civil Liberties.

The Electronic Frontier Foundation and EPIC (Electronic Privacy Information centre), both US-based data privacy watchdogs, are also among those who want to be joined.

US attorney Donna Chapin, of the US Department of Justice, said in a sworn statement the case was of the "utmost importance" to the US government.


She said it raises issues concerning the legality, as a matter of EU law, of the present regime governing transfer of EU citizens' data to the US, "and the circumstances in which such data are accessed and processed on law enforcement and national security grounds".

The US was best placed to provide an "accurate, up to date and comprehensive account" of the relevant US legal regime concerning access to data by government authorities, including available redress measures, she said.

The Commissioner had said she had received unsolicited submissions last month from the US concerning the Privacy Shield Framework, Ms Chapin said.

She had formed her own "independent view" after seeking independent expert advice on certain matters of US law but that advice had not so far been seen by the US government, Ms Chapin said.

Irish Independent

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