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High Court asks Europe whether Facebook should be investigated over NSA

A number of questions relating to a case involving the Irish Data Protection Commissioner’s decision to not investigate Facebook, will now be dealt with by the European Court of Justice.

Austrian student Max Schrems who made the complaint against the Data Commissioner.
Austrian student Max Schrems who made the complaint against the Data Commissioner.
Image: Ronald Zak/AP/Press Association Images

Updated 3.45pm

A HIGH COURT judge has referred a case concerning Facebook’s involvement with PRISM to the European Court of Justice (ECJ).

The case, which involves the Irish Data Protection Commissioner’s decision not to investigate Facebook over its involvement with PRISM, the surveillance operation ran by the US’ National Security Agency (NSA), will stand adjourned until a number of issues relating to the case are clarified by the ECJ.

Judge Gerard Hogan decided to uphold a decision made by the Data Protection Commissioner Billy Hawkes not to investigate complaints made against Facebook.

The ECJ ruling will also have an effect on other US companies involved in PRISM such as Apple, Google and Yahoo, which also have offices in Ireland.

In a statement, Max Schrems, who is a member of Europe vs Facebook and made the complaint, said the decision was the best outcome they could have hoped for.

“We did not prepare for a direct reference to the ECJ, but this is the best outcome we could have wished for. We will not study the judgement in details and will take the next steps as soon as possible.

Schrems sought a judicial review of a decision made by Hawkes to not investigate complaints he had made against Facebook.

Schrems was concerned about the transfer of data to the US, which he argued that European’s data was further forwarded to the NSA for mass surveillance of Europeans.

However, the commissioner declined to pursue an investigation under Section 10 of the Data Protection Acts, 1988 and 2003, which allows him to decide that a matter doesn’t require a formal investigation by the office.

This was down to the European Commission’s ‘Safe Harbour’ decision, a process which requires US companies to comply with EU directive on the protection of personal data.

Hawkes’ decision was upheld by Justice Gerard Hogan, who said that the Data Protection Commissioner had correctly interpreted the agreement, signed by the EU and US in 2000.

The Safe Harbour agreement permitted the exchange of certain types of data between the two.

The High Court said that the Safe Harbour directive formed “the nub” of the issue for the Data Commissioner and backed his decision.

Justice Hogan said that Hawkes was bound by a “community finding” that says that the adequacy of data protection be examined in the country the data is being transferred to.

The community finding in question was, as we have already seen, to the effect that the US does provide adequate data protection for data subjects in respect of data handled or processed by firms (such as Facebook Ireland and Facebook) which operate the Safe Harbour regime.

He noted that the Safe Harbour deal was made pre-September 11 and said it may be a relic of a “more innocent age”.

Originally posted 1.34pm.

Additional reporting by Paul Hosford.

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Quinton O'Reilly

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