Ireland has been described as the Wild West of European finance and yesterday the sheriff came to town. For the first time the US government looked to join Irish proceedings destined for the European courts in Luxembourg so that it can make the case for transferring personal data across the Atlantic. But it needs to be careful what it wishes for because if its application is successful it may have to provide details on oath to the Irish and European courts of surveillance by the US security services. Will this be the first time the world can really see what happens to their personal data which is held by the US internet giants? All will be revealed by the end of the month when Mr Justice Brian McGovern decides who can intervene in the Schrems II case.
This week in the Irish High Court an unprecedented ten parties applied to the to become amicus curiae, or friends of the court, in the Schrems II case – a case between the Irish Data Protection Commissioner and Max Shrems, an Austrian privacy activist, concerning transfers of personal data from Europe to the US by social network Facebook.
Proceedings had been taken by the Irish Data Protection Commissioner seeking to establish the legality of so-called Standard Contractual Clauses (SCCs), which are intended to legalise the transfer of personal data from Europe to the US. The Commissioner is asking the Court to refer questions concerning the legality of the SCCs to the Court of Justice of the European Union (CJEU).
An amicus curiae, although not party to the proceedings, has a strong interest in the matter at hand and acts to assist the court in its deliberation. A party must be a party to the Irish proceedings is it wishes to participate in a reference to the CJEU. The parties that applied to the Court include the US government; the Irish Human Rights and Equality Commission; Irish Council for Civil Liberties, American Civil Liberties Union, the Electronic Frontier Foundation and the Electronic Privacy Information Center. Also making applications were the Business Software Alliance, the Irish Business and Employers Confederation (IBEC), Digital Europe and data privacy campaigner Kevin Cahill.
The US government, acknowledged that this is an unusual case and the US is in a “unique and unprecedented position”. Counsel stated that the US has a bona fide interest in the proceedings and the US government’s expertise in US law is crucial. It was contended that it is critical that the Court, and the CJEU in the case of a referral, have the assistance of the US authorities. It was also contended that Facebook had not only consented to the joining of the US, but also stated that the US has the strongest case to be an amicus curiae. According to the US government Mr Schrems had no objection to the US joining provided that other civil society organisations were also joined and that the role of the US was strictly constrained by the court.
The Electronic Privacy Information Center submitted that it has expertise in US privacy issues and information technology. It also said that it has unrivaled experience in acting as an amicus in US courts.
Mr Justice McGovern is expected to give his ruling by the end of July.
We will then know if the truth will finally be told about the relationship between the US intelligence services and the internet giants.
Article written by Conor Fynes
Photo by Larry Lamsa