Wednesday 13 December 2017

US spy services queried in Irish Facebook case

Data Protection Commissioner Helen Dixon
Data Protection Commissioner Helen Dixon

Tim Healy

A HIGH Court judge has asked lawyers for the US government to explain findings that US intelligence agencies failed to comply with restrictions on surveillance including of social media accounts.

Ms Justice Caroline Costello was hearing submissions about the significance of recently announced restrictions on the collection of personal data by the US National Security Agency (NSA), to a case taken by the Data Protection Commissioner here, Helen Dixon, on the issue of data transfers between the US and EU.

While the NSA has historically been authorised to acquire communications to, from, or "about" a surveillance target under Section 702 of the Foreign Intelligence Security Act, recent changes mean it will no longer collect communications "about" a target.

Last March Judge Costello reserved judgment on the case but Eileen Barrington SC, for the US government, subsequently asked the judge to consider new developments when preparing her judgment.

The judge agreed to receive the information, formally provided by Facebook Ireland as a party to the case. She also agreed to allow experts for the sides involved in the case to give their views on it.

In her proceedings, Commissioner Dixon wants the judge to ask the EU Court of Justice to decide the validity or otherwise of a European Commission decision approving data transfer channels known as standard contractual clauses (SCCs) between the EU and US.

Her case is against Facebook Ireland - because its European HQ is here - and Austrian lawyer Max Schrems who oppose referral of the case to the EU court, though for different reasons. The US government is among several parties joined as amici curiae, "friends to the court" on legal issues involved.

The developments raised by the US government are a decision of the US Foreign Intelligence Surveillance Court (FISC) on April 26 which addressed failures by US agencies to comply with rules restraining collection of "about" data.

Another development was a decision by the US Court of Appeals for the Fourth Circuit that Wikimedia, but not several other plaintiffs, had the necessary legal standing to challenge the NSA's Upstream surveillance programme.

Brian Murray SC, for the Commissioner, yesterday argued the new material was not significant to the core issues the High Court has to decide. The FISC opinion mainly relates to US persons while the Wikimedia decision does not affect the Irish court's analysis, he said.

Eileen Barrington SC, for the US government, said the FISC opinion is a significant legal development which illustrates "effective judicial oversight" and also has an impact of EU citizens.

The FISC opinion provided for additional safeguards and any future introduction of "about" communications would require fresh approval from the FISC, she added.

The judge observed the FISC opinion appeared to disclose a "history of disquiet" concerning how "about" communications were handled rather than the principle of collecting "about" communications.

Ms Barrington agreed the "about" data collection could be reintroduced but said FISC would have to be satisfied to certify that. It was "distorting" to look exclusively at the issue of formal judicial remedies, she said.

Irish Independent

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