A European legal opinion regarding Facebook’s alleged data-sharing co-operation with the NSA/PRISM dragnet surveillance program that’s due to be issued by the Advocate General (AG) of Europe’s top court is now due to be delivered on September 23.The AG had originally been scheduled to deliver the opinion in June. The delay has not been explained by the European Court of Justice (ECJ). The issue involves the so-called ‘Safe Harbor’ agreement which arose as a result of the revelations provided by Edward Snowden's leaked information on the NSA.
In 2013 the Europe vs Facebook (EvF) privacy organization, led by data protection activist and lawyer Max Schrems, filed law suits against several U.S. tech giants including Facebook for their alleged collaboration with PRISM. PRISM is a clandestine surveillance program under which the United States National Security Agency (NSA) collects internet communications from at least nine major US internet companies. Since 2001 the United States government has increased its scope for such surveillance, and so this program was launched in 2007.
The Irish data protection authority, the country where Facebook’s European headquarters are based, quickly dismissed the EvF complaint citing Safe Harbor as the justification for any data-sharing under PRISM. Mr Schrems challenged that decision at the Irish High Court which referred the case to the ECJ in June last year. So the complaint has moved from Ireland to Luxembourg where the ECJ’s AG is now due to opine on whether the Irish DPA was right to dismiss the complaint or not later this month.
The AG’s opinion is non-binding but does inform the thinking of the 15 judges of the ECJ as they work to determine the court’s final ruling expected later this year. In addition, in an ECJ hearing back in March, the European Commission stated that the Safe Harbor agreement does not provide “adequate protection”, and has repeatedly said that an update for the system will be forthcoming although this has yet to materialize. Speculating on possible outcomes of the AG opinion, EvF has stated that it could range from narrowing the interpretation of Safe Harbor, invalidating the Safe Harbor decision or “an even broader ruling on international data transfers taking into consideration the European Union’s fundamental right to data protection in Article 8 of the Charter of Fundamental Rights of the European Union”. It will be interesting to see what this opinion will look like when it is handed down, as it will be of great interest to many.