Highlights | On the ground | Privacy and data protection | Surveillance and data retention

Facebook fails to avoid CJEU judgment on NSA case

By Contribution by EDRi member noyb, Austria (guest author) · June 5, 2019

On 31 May 2019, the Irish Supreme Court decided over an unprecedented application by Facebook. The decision is part of an ongoing procedure on Facebook’s involvement with the United States Nationa Security Agency (NSA) under the so-called “PRISM” surveillance program before the Irish Data Protection Commission (DPC) and the Irish High Court.

The Supreme Court denied Facebook’s application in substance as the company was unable to substantiate its appeal. As a result, the Supreme Court decided not to take the actions requested by Facebook.

“Facebook again likely invested, again, millions to stop this case from progressing. It is good to see that the Supreme Court has not followed Facebook’s arguments that were in total denial of all existing findings so far. We are now looking forward to the hearing at the Court of Justice in Luxembourg next month,” said Max Schrems, complainant and chairperson of noyb.

The case follows a complaint by privacy lawyer Max Schrems against Facebook in 2013. More than six years ago, Edward Snowden revealed that Facebook allowed the US secret services to access personal data of Europeans under surveillance programs like “PRISM”. So far, the Irish DPC has not taken any concrete actions, despite the clear demands of the complaint to stop the EU-US data transfers by Facebook.

The case was first rejected by the Irish Data Protection Commissioner in 2013. It was then subject to a judicial review by the Irish High Court which made a reference to the Court of Justice of the European Union (CJEU). The latter ruled in 2015 that the so-called “Safe Harbor” agreement that allowed EU-US data transfers is invalid judgment in C-362/14 and that the Irish DPC must investigate the case.

The investigation lasted only a couple of months between December 2015 and spring of 2016. Instead of deciding over the complaint, the DPC filed a lawsuit against Facebook and Mr. Schrems at the Irish High Court in 2016, with a view to sending further questions to the CJEU. After more than six weeks of hearings, the Irish High Court found that the US government had engaged in “mass processing” of Europeans’ personal data and referred eleven questions to the CJEU for the second time in 2018.

In an unprecedented application made thereafter, Facebook has tried to stop the reference by asking the Irish Supreme Court to advise the High Court on the reference. The CJEU announced that it plans to hear the case (now C-311/18) on 9 July 2019 – about six years from the filing of the original complaints.

After a judgment of the CJEU, the DPC would have to finally decide over the complaint for the first time. This decision would again be subject to possible appeals by Facebook or Mr. Schrems to the Irish Court.


Press Release: Irish Supreme Court dismisses Facebook’s final attempt to block CJEU reference on involvement with NSA mass surveillance (31.05.2019)

Europe vs. Facebook

(Contribution by EDRi member noyb, Austria)