ACLU Comment on EU Facebook Challenge Opinion

LUXEMBOURG CITY — An advocate general to the European Union’s Court of Justice today issued an advisory opinion to the court in a case challenging Facebook Ireland’s transfer of Europeans’ personal data into the United States. While the advocate general punts on the question of whether the Privacy Shield — a data-sharing agreement between the European Union and the United States — adequately protects the privacy rights of Europeans, the opinion raises several serious concerns about the breadth of U.S. surveillance and the lack of adequate remedies. The opinion also holds that European Union data protection commissioners must suspend or prohibit data transfers if they conclude that U.S. law fails to adequately protect Europeans’ data.

The American Civil Liberties Union provided expert testimony on U.S. surveillance laws in the case.

The advocate general’s opinion is non-binding and does not reflect the ultimate outcome of the case, which will be decided by the European Union Court of Justice at a later date. That ruling could have significant implications for U.S. businesses’ data-sharing practices, and the privacy rights of Europeans and Americans.

Below is comment from Ashley Gorski, staff attorney with the ACLU’s National Security Project:

“This opinion is a searing indictment of U.S. surveillance laws and does not bode well for the future of the Privacy Shield. In considering whether U.S. surveillance laws adequately protect the rights of Europeans, the advocate general lambasts our mass surveillance regime, the U.S. government’s failure to notify individuals subject to this surveillance, and the absence of meaningful protections and remedies. U.S. lawmakers should swiftly enact broader surveillance reforms before our government’s surveillance practices become an even greater financial liability for U.S. companies trying to compete in a global market. This opinion is also a warning for industry leaders that their bottom lines could suffer if Congress fails to adequately reform the United States’ surveillance laws.”

The opinion comes in a case originally brought by Austrian lawyer and privacy advocate Max Schrems arguing that, given the scope of the United States’ mass surveillance practices, transatlantic transfers of his data violate his rights. Schrems also argues that the Privacy Shield fails to safeguard transferred data from the United States’ mass spying operations.

The advocate general’s opinion rebuking U.S. surveillance practices follows a report by U.S. Justice Department Inspector General Michael Horowitz revealing multiple U.S. government surveillance abuses. The ACLU is calling on the U.S. Congress to radically reform the country’s surveillance laws to increase accountability, and to ensure that there is a meaningful opportunity to challenge the government’s surveillance.

A statement by Schrems is here: https://noyb.eu/wp-content/uploads/2019/12/pa_ag_19-12-2019_en.pdf.