Facebook to defend United States data transfer

Max Schrems leaves the High Court in Dublin

A ruling given out today (3 October) on a data protection case will have repercussions for both individual data privacy and worldwide business inside and outside of the European Union.

His legal team claimed that the Irish watchdog already had the power to stop data transfers from Facebook and should use it. The Safe Harbor regime had been established in 2000 by the European Union executive commission, which found that USA data laws were adequate to protect the rights of European Union citizens.

Schrems argues that the SCCs offer no redress for European citizens in the United States in the event of their data being accessed by a third party, such as U.S. intelligence services, or compromised in some other way.

After the first Schrems CJEU ruling was delivered in October 2015, the matter returned to the High Court, where an order was made returning Mr Schrems's complaint to the Data Protection Commissioner for investigation.

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She went on to say she "hopes these issues will be addressed by the CJEU as soon as possible to provide certainty for data subjects and controllers alike", and that today's decision "does not invalidate the SCCs (nor the Privacy Shield); neither does it prohibit their continued use use for the goal of data transfers to the U.S. or elsewhere".

"I therefore have made a decision to ask the Court of Justice for a preliminary ruling", she concluded. The others are the BSA Business Software Alliance, a trade association whose members include Apple, Microsoft and Intel; Digital Europe, which represents the region's digital technology industry; and the Electronic Privacy Information Center, a U.S. civil liberties group.

Now, in a landmark judgment the High Court has decided to make a reference for a preliminary ruling to the CJEU.

Ireland's data commissioner "has raised well-founded concerns that there is an absence of an effective remedy in U.S. law for an European Union citizen whose data are transferred to the USA where they may be at risk of being accessed and processed by USA state agencies for national security purposes in a manner incompatible" with the EU's Charter of Fundamental Rights, the Irish High Court decided on Tuesday.

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The decision made by the European court, which could take more than a year to reach, will have implications for any companies - not just Facebook - that process data between their U.S. and EU businesses.

This morning, Schrems confirmed via Twitter that the case would be referred to the CJEU.

The High Court has given the parties to the proceedings an opportunity to consider the written judgment, which runs to 152 pages, and will hear further submissions from the parties on the specific questions to be referred to the CJEU.

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