US Govt has 'issues' over accuracy of 'some descriptions of US law' in Facebook data transfer case

Facebook is also considering seeking an appeal against the Irish court’s decision to ask the CJEU to determine whether European Commission decisions approving use of the channels, known as Standard Contractual Clauses, are valid or not.

Ms Justice Caroline Costello heard submissions today about preparing questions for determination by the CJEU .

That arises from her significant judgment granting Data Protection Commissioner Helen Dixon’s application for a referral. The case, the judge noted, has potentially huge implications for billions of euro worth of EU-US trade and data privacy rights of millions of EU citizens as well as their safety and security .

The judge made the referral for reasons including she agreed with the Commissioner there are "well founded" grounds for believing three European Commission decisions approving data transfer channels known as Standard Contractual Clauses (SCCs) are invalid. That was due to the absence of an effective remedy in the US for an EU citizen who alleged breach of data privacy rights.

The referral was granted in the Commissioner’s proceedings against Facebook Ireland and Austrian lawyer Max Schrems. The case was rooted in a complaint by Mr Schrems about transfer of his data by Facebook to its US parent.

Today, Eileen Barrington SC, for the US government, said it is anxious to have its views on the questions considered for reasons including to ensure the description of US law in the final High Court referral order is “factually accurate”.

Her side had reviewed the court’s judgment and had “issues” about some of the descriptions of US law.

She was also concerned the Commissioner appeared of the view the US government is not a “party” to the proceedings before the CJEU. The US got involved in the Irish case because of the prospect of a referral and will have a role before the CJEU, that has been the practice and she would be concerned if the Commissioner believed otherwise.

Lawyers for Digital Europe, the Business Software Alliance and Washington-based Electronic Privacy Centre – all legal assistants to the court in the Commissioner’s case – said they also wished to be heard on the questions.

Michael Collins SC, for the Commissioner, said he was anxious there should be no attempts to “relitigate the matter” but any actual errors could be corrected.

Lawyers for the Commissioner and the defendants - Facebook and Mr Schrems - will try and agree on the wording of the questions and present those to the court, he said. He was concerned it would be “difficult enough” for the three parties to agree a wording and could be “next to impossible” if the amici were also involved.

The issue of who would be involved in the CJEU case was a matter for that court, he added.

Eoin McCullough SC, for Mr Schrems, said he took an even stronger view the wording of the questions was a matter for the parties. Paul Gallagher SC, for Facebook, said the parties should agree the questions but the amici could make “suggestions” about them.

The judge, who will make the final decision on the wording, said it was “best” the parties try and agree questions but drafts could be sent to the amici who could participate in the court hearing to finalise the wording. The parties are not obliged to take account of their views, she added.

She was told by Mr Gallagher Facebook is considering applying to the Supreme Court for a direct “leapfrog” appeal over the referral. There is an issue whether Facebook can bring any appeal against a reference ruling, but only the Supreme Court can determine whether there is such an entitlement, he said.