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Cite as: [2014] 2 ILRM 401, [2014] IEHC 310, [2014] 3 CMLR 37
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Judgment Title: Schrems -v- Data Protection Commissioner Neutral Citation: [2014] IEHC 310 High Court Record Number: 2013 765 JR Date of Delivery: 18/06/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 310 THE HIGH COURT [2013 No. 765JR] BETWEEN/ MAXIMILLIAN SCHREMS APPLICANT AND
DATA PROTECTION COMMISSIONER RESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on the 18th June, 2014 I 2. These revelations form the backdrop to the present judicial review application. The applicant, Mr. Schrems, maintains that as the Snowden disclosures demonstrate that there is no effective data protection regime in the United States, the respondent Data Protection Commissioner (“the Commissioner”) should exercise his statutory powers to direct that the transfer of personal data from Facebook Ireland to its parent company in the United States should cease. The Commissioner for his part maintains that he is bound by the terms of a finding of the European Commission in July 2000 to hold that the data protection regime in the United States is adequate and effective where the companies which transfer or process the data to the United States self-certify that they comply with the principles set down in this Commission decision. The European Commission decision of July 2000 sets up a regime known as the Safe Harbour regime and one of the many issues which arise from these proceedings is whether the Safe Harbour principles are still effective and functional some fourteen years after that decision and finding. 3. Central to the entire case is the Commissioner’s conclusion that the applicant’s complaint is unsustainable in law, precisely because the Safe Harbour regime gives the imprimatur to such data transfers on the basis that the European Commission concluded that the US does, in fact, provide for adequate data protection. The applicant maintains in turn that this decision of the Commissioner is unlawful. II 5. Yet only the foolish would deny that the United States has, by virtue of its superpower status, either assumed - or, if you prefer, has had cast upon it - far-reaching global security responsibilities. It is probably the only the world power with a global reach which can effectively monitor the activities of rogue states, advanced terrorist groups and major organised crime, even if the support of allied states such as the United Kingdom is also of great assistance in the discharge of these tasks and responsibilities. The monitoring of global communications - subject, of course, to key safeguards - is accordingly regarded essential if the US is to discharge the mandate which it has thus assumed. These surveillance programmes have undoubtedly saved many lives and have helped to ensure a high level of security, both throughout the Western world and elsewhere. But there may also be a suspicion in some quarters that this type of surveillance has had collateral objects and effects, including the preservation and re-inforcing of American global political and economic power. 6. One may likewise fairly assume that the Snowden revelations have compromised these important national security programmes. This will certainly hamper entirely legitimate counter-terrorism operations and, by reason of the possibly inadvertent disclosure of personal information, perhaps even the lives of security operatives working overseas have been put at risk: see Miranda v. Home Secretary [2014] EWHC Admin 255 where these adverse effects of the Snowden revelations were summarised by Laws L.J. for the English High Court in these terms by reference to evidence tendered in that case by security specialists and operatives. 7. It would, however, be equally naïve to believe that this sort of surveillance is the preserve of the superpowers. One may fairly assume that even those states - both big and small - who protested loudly in the wake of the Snowden revelations concerning the invasion of the data protection of their citizens would not themselves be above resorting to such irregular espionage (i.e., surveillance and interception of communications which are not provided for by law) where it suited their interests. This might be especially so where these governments could conveniently turn a blind eye to such surveillance and interception activities on the part of their security forces, or, better still, where they could credibly deny that such espionage had ever been officially “sanctioned.” 8. On the other hand, the Snowden revelations demonstrate a massive overreach on the part of the security authorities, with an almost studied indifference to the privacy interests of ordinary citizens. Their data protection rights have been seriously compromised by mass and largely unsupervised surveillance programmes. 9. It is necessary now to say something briefly about the PRISM programme, the details of which were at the core of the Snowden revelations. III The Snowden revelations and the PRISM programme 10. According to a report in The Washington Post published on 6th June 2013, the NSA and the Federal Bureau of Investigation (“FBI”):
12. In a report in The Guardian newspaper dated 31st July, 2013, it was claimed that a top secret NSA programme entitled “X Keyscore” enabled it to collect “nearly everything a user does on the internet”. The report further claimed that:
IV 15. It would seem, however, that the FISA Court’s hearing are entirely conducted in secret, so that even the court orders and its jurisprudence remain a closed book. The US security authorities are, in effect, the only parties who are or who can be heard in respect of such applications before the FISA Court. One of the striking features of the Snowden revelations was the disclosure of (hitherto secret) orders of the FISA Court which effectively required major telecommunication companies to make disclosure of daily telephone call records on a vast and undifferentiated scale, while the company in question was itself prevented from disclosing the existence or the nature of the order. Yet the essentially secret and ex parte nature of the FISA Court’s activities makes an independent assessment of its orders and jurisprudence all but impossible. This is another factor which must - to some degree, at least - cast a shadow over the extent to which non-US data subjects enjoy effective data protection rights in that jurisdiction so far as generalised and mass State surveillance of interception of communications is concerned. V 17. The practical effect of this is that Facebook Ireland is designated as a “data controller” within the meaning of s. 2 of the Data Protection Act 1988 for personal data relating to Facebook subscribers resident in the member states of the European Economic Area (“EEA”). It is not in dispute that while Facebook Ireland is subject to regulation under the Data Protection Acts, some or all data relating to Facebook subscribers resident within the EEA is in fact transferred to and held on servers which are physically located in the United States. 18. Mr. Schrems has already made some 22 other complaints concerning Facebook Ireland to the Commissioner, but it is agreed none of these fall to be considered in the present judicial review proceedings. This case rather concerns the 23rd complaint which Mr. Schrems made concerning Facebook Ireland. This particular complaint was dated 25th June, 2013, and arose directly out of the Snowden revelations and, specifically, the PRISM programme. VI 20. Section 11(1) of the 1988 Act articulates a general prohibition on the transfer of personal data outside of the State, save where that foreign State “ensures an adequate level of protection for the privacy and the fundamental rights and freedoms of data subjects in relation to the processing of personal data having regard to all the circumstances surrounding that transfer.” The reference here to privacy and the fundamental rights and freedoms of data subjects must be gauged in the first instance by the protections afforded in this regard by the Constitution, a topic to which I will presently revert. 21. So far as these proceedings are concerned, however, the critical sub-section is that contained in s. 11(2) of the 1988 Act, a sub-section which allows for the pre-emption of Irish law by EU law where a “Community finding” as to the adequacy of data protection in the third country has been made by the European Commission. Section 11(2)(a) accordingly provides:
(i) whether the adequate level of protection specified in subsection (1) of this section is ensured by a country or territory outside the European Economic Area to which personal data are to be transferred, and (ii) a Community finding has been made in relation to transfers of the kind in question, the question shall be determined in accordance with that finding.”
Member States shall take the measures necessary to comply with the Commission’s decision.” 25. As the recitals to that Commission decision make clear, however, an adequate level of protection:
(a) the organisation receiving the data has unambiguously and publicly disclosed its commitment to comply with the Principles implemented in accordance with the FAQs; (b) the organisation is subject to the statutory powers of a government body in the United States listed in Annex VII to this Decision which is empowered to investigate complaints and to obtain relief against unfair or deceptive practices as well as redress for individuals, irrespective of their country of residence or nationality, in the case of non-compliance with the Principles implemented in accordance with the FAQs.”
(a) the government body in the United States referred to in Annex VII to this Decision or an independent recourse mechanism within the meaning of letter (a) of the Enforcement Principle set out in Annex I to this Decision has determined that the organisation is violating the Principles implemented in accordance with the FAQs; or (b) there is a substantial likelihood that the Principles are being violated; there is a reasonable basis for believing that the enforcement mechanism concerned is not taking or will not take adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent risk of grave harm to data subjects; and the competent authorities in the Member State have made reasonable efforts under the circumstances to provide the organisation with notice and an opportunity to respond. The suspension shall cease as soon as compliance with the Principles implemented in accordance with the FAQs is assured and the competent authorities concerned in the Community are notified thereof.” VII The complaints made by Mr.Schrems of 25th June, 2013 29. The complaint made by Mr. Schrems on 25th June, 2013, was, in essence, that by transferring user data to the United States, Facebook Ireland was facilitating the processing of such data by Facebook itself. While Facebook has self-certified by reference to the Safe Harbour principles, Mr. Schrems contended that the Snowden revelations regarding the Prism programme demonstrated that there was no meaningful protection in US law or practice in respect of data so transferred so far as State surveillance was concerned. Specifically, Mr. Schrems maintained that this was especially so given that the US law enforcement agencies could obtain access to such data without the need for a court order, or, at least, a court order showing probable cause that a particular data subject had engaged in illegal activities or stood possessed of information which would be of genuine interest to law enforcement bodies. 30. The response of the Commissioner to this complaint can probably be best summed up in a letter dated 26th July, 2013:
‘Where in any proceedings under this Act a question arises: (i) whether the adequate level of protection specified in sub-section (1) of this section is ensured by a country or territory outside the European Economic Area to which personal date are to be transferred, and (ii) a Community finding has been made in relation to transfers of this kind, the question shall be determined in accordance with that finding.’ The Commissioner has concluded that, as Facebook-Ireland is registered under the Safe Harbour arrangement and as this provides for US law enforcement access, there is nothing for this Office to investigate.”
33. It should also be pointed out that the Commissioner had, in any event, raised the question of the PRISM allegations with Facebook Ireland in advance of receiving Mr. Schrem’s complaint. In the course of those discussions, Facebook Ireland confirmed that its parent, Facebook, did not provide access to US security agencies to subscriber data, save by means of targeted requests which were properly and lawfully made. The Commissioner had satisfied himself on the basis of an audit which he had carried out of Facebook Ireland that it had appropriate procedures in place for the handing of access requests received from security agencies generally. VIII Whether the complaint was “frivolous and vexatious” 34. Section 10(1) of the 1988 Act provides as follows:-
(b) Where a complaint is made to the Commissioner under paragraph (a) of this subsection, the Commissioner shall - (i) investigate the complaint or cause it to be investigated, unless he is of opinion that it is frivolous or vexatious, and (ii) if he or she is unable to arrange, within a reasonable time, for the amicable resolution by the parties concerned of the matter, the subject of the complaint notify in writing the individual who made the complaint of his or her decision in relation to it and that the individual may, if aggrieved by the decision, appeal against it, to the Court under section 26 of this Act within 21 days from the receipt by him or her of the notification.” 36. In Novak the issue was whether a candidate’s answer paper in a professional examination constituted “personal data” within the meaning of the Data Protection Acts. The Commissioner concluded that the examination answer did not so constitute personal data and he declined to investigate the matter further. The student appealed to the Circuit Court, but in her judgment delivered on 16th November, 2010, Her Honour Judge Linnane concluded that absent a decision to proceed to investigate no such appeal lay. This decision was subsequently upheld by the decision of Birmingham J. for this Court. 37. So far as the jurisdictional issue is concerned, Birmingham J. concluded:
(1) The Commissioner has to decide whether the matter submitted to him is frivolous or vexatious. (2) If the Commissioner is of the view that the matter was not frivolous or vexatious, then, unless an amicable resolution can be arranged within a reasonable time, he considers the matter and reaches a decision in relation to it and then informs the complainant of the decision that has been reached and that the decision may be appealed. (3) However, if the view is formed that the matter that has been submitted is frivolous or vexatious, then the Commissioner does not investigate the complaint or cause it to be investigated. In that event the procedure comes to a halt. I find myself in respectful agreement with Judge Linnane that the jurisdiction of the Circuit Court is to hear an appeal against a decision that has been arrived at after there has been an investigation. I share her view that absent investigation of the complaint and a decision in relation to the investigation, that the Circuit Court has no jurisdiction. The entitlement of an aggrieved party in the first place to submit an appeal and then of the Court to hear and determine an appeal arises only where there has been a decision of the Commissioner in relation to a complaint under section 10(1)(a). However, the Commissioner reaches a decision in relation to a complaint only if, not having decided that the matter is frivolous and vexatious, he proceeds to investigate the complaint and reaches a decision in relation thereto.”
40. We can now proceed to examine the merits of these judicial review proceedings. Before doing so, however, it is necessary to consider a preliminary point raised as an objection by the Commissioner, namely, that of locus standi of the complainant. IX The locus standi of the complainant 41. The Commissioner contends that as there is no evidence by which he could have concluded that the Safe Harbour Principles were in fact being violated in the case of data transfers between Facebook Ireland and Facebook, it was submitted that these complaints were essentially hypothetical and speculative in nature. Nor, it was further submitted, was any evidence ever adduced to suggest that there was an imminent risk of grave harm to him or that any of his data had been or was likely to be accessed by the NSA. 42. For my part, I do not think that this objection is well founded. The Snowden revelations demonstrate - almost beyond peradventure - that the US security services can routinely access the personal data of European citizens which has been so transferred to the United States and, in these circumstances, one may fairly question whether US law and practice in relation to data protection and State security provides for meaningful or effective judicial or legal control. It is true that Mr. Schrems cannot show any evidence that his data has been accessed in this fashion, but this is not really the gist of the objection. 43. The essence of the right to data privacy is that, so far as national law is concerned and by analogy with the protection afforded by Article 40.5 of the Constitution, that privacy should remain inviolate and not be interfered with save in the manner provided for by law, i.e., by means of a probable cause warrant issued under s. 6 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, on the basis that the interception of such communications involving a named individual is necessary in the interests of either the suppression of serious crime or the protection of national security. 44. This is also clearly the position under EU law as well, a point recently confirmed by the Court of Justice in Case C-293/12 Digital Rights Ireland in a case where the Data Retention Directive, Directive 2006/24/EC was held to be invalid by reason of the absence of sufficient safeguards in respect of the accessing of such data by national authorities:
To establish the existence of an interference with the fundamental right to privacy, it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way (see, to that effect, Cases C 465/00, C 138/01 and C 139/01 ÖsterreichischerRundfun and Others EU:C:2003:294, paragraph 75). As a result, the obligation imposed by Articles 3 and 6 of Directive 2006/24 on providers of publicly available electronic communications services or of public communications networks to retain, for a certain period, data relating to a person’s private life and to his communications, such as those referred to in Article 5 of the directive, constitutes in itself an interference with the rights guaranteed by Article 7 of the Charter. Furthermore, the access of the competent national authorities to the data constitutes a further interference with that fundamental right….Accordingly, Articles 4 and 8 of Directive 2006/24 laying down rules relating to the access of the competent national authorities to the data also constitute an interference with the rights guaranteed by Article 7 of the Charter. Likewise, Directive 2006/24 constitutes an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data. It must be stated that the interference caused by Directive 2006/24 with the fundamental rights laid down in Articles 7 and 8 of the Charter is… and it must be considered to be particularly serious. Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his Opinion, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.” 46. It is manifestly obvious that the present case raises issues of both national and EU law, although in the event the issue is largely governed by EU law given the central importance of the Commission decision of July 2000. It may nevertheless be convenient to consider the position both from the perspective of national law and EU law. X The position under national law 47. As far as Irish law is concerned, the accessing of private communications by the State authorities through interception or surveillance directly engages the constitutional right to privacy: see, e.g., Kennedy v. Ireland [1987] I.R. 587; People v. Dillon [2003] 1 I.L.R.M. 531 and People v. Idah [2014] IECCA 3. As Hamilton P. noted in Kennedy, this constitutional right is underscored by the Preamble’s commitment to the protection of the “dignity and freedom of the individual” and the guarantee of a democratic society contained in Article 5 of the Constitution. 48. One might add that the accessing by State authorities of private communications generated within the home - whether this involves the accessing of telephone calls, internet use or private mail - also directly engages the inviolability of the dwelling as guaranteed by Article 40.5 of the Constitution. As it happens, by one of those accidents of legal history, these very same words are also contained in Article 13(1) of the German Basic Law (“inviolability of the dwelling”) (“unverletzlichkeit der Wohnung”). It is, accordingly, of interest that the German Constitutional Court has held that the accessing by state authorities of otherwise private communications within the home also engages that more or less identically worded guarantee of inviolability of the dwelling which is contained in Article 13(1) of the Basic Law. Indeed that Court went further and found that legislation providing for the interception and surveillance of communications partly unconstitutional because it provided for a disproportionate interference without adequate safeguards with that very guarantee of inviolability of the dwelling in Article 13(1) of the Basic Law: see Anti-Terrorism Database Law decision (1 B v R 1215/07)(April 24, 2013) at paras. 93 et seq. 49. Naturally, the mere fact that these rights are thus engaged does not necessarily mean that the interception of communications by State authorities is necessarily or always unlawful. The Preamble to the Constitution envisages a “true social order” where the “dignity and freedom of the individual may be assured”, so that both liberty and security are valued. Provided appropriate safeguards are in place, it would have to be acknowledged that in a modern society electronic surveillance and interception of communications is indispensable to the preservation of State security. It is accordingly plain that legislation of this general kind serves important - indeed, vital and indispensable - State goals and interests: cf. by analogy the decision of the German Constitutional Court in the Anti-Terrorism Database case (at paras. 106, 131 and 133, passim) and the comments of the Court of Justice in Case C-293/12 Digital Rights Ireland Ltd. [2014] E.C.R. I-000 at paras. 42-44. 50. The importance of these rights is such nonetheless that the interference with these privacy interests must be in a manner provided for by law and any such interference must also be proportionate. This is especially the case in respect of the interception and surveillance of communications within the home. While the use of the term “inviolable” in respect of the dwelling in Article 40.5 does not literally mean what it says, the reference to inviolability in this context nonetheless conveys that the home enjoys the highest level of protection which might reasonably be afforded in a democratic society: see, e.g., Wicklow County Council v. Fortune (No.1) [2012] IEHC 406. 51. By safeguarding the inviolability of the dwelling, Article 40.5 provides yet a further example of a leitmotif which suffuses the entire constitutional order, namely, that the State exists to serve the individual and society and not the other way around. 52. In this regard, it is very difficult to see how the mass and undifferentiated accessing by State authorities of personal data generated perhaps especially within the home - such as e-mails, text messages, internet usage and telephone calls - would pass any proportionality test or could survive constitutional scrutiny on this ground alone. The potential for abuse in such cases would be enormous and might even give rise to the possibility that no facet of private or domestic life within the home would be immune from potential State scrutiny and observation. 53. Such a state of affairs - with its gloomy echoes of the mass state surveillance programmes conducted in totalitarian states such as the German Democratic Republic of Ulbricht and Honecker - would be totally at odds with the basic premises and fundamental values of the Constitution: respect for human dignity and freedom of the individual (as per the Preamble); personal autonomy (Article 40.3.1 and Article 40.3.2); the inviolability of the dwelling (Article 40.5) and protection of family life (Article 41). As Hardiman J. observed in The People v. O’Brien [2012] IECCA 68, Article 40.5
55. That general protection for privacy, person and security in Article 40.5 would thus be entirely compromised by the mass and undifferentiated surveillance by State authorities of conversations and communications which take place within the home. For such interception of communications of this nature to be constitutionally valid, it would, accordingly, be necessary to demonstrate that this interception of communications and the surveillance of individuals or groups of individuals was objectively justified in the interests of the suppression of crime and national security and, further, that any such interception was attended by appropriate and verifiable safeguards. 56. If this matter were entirely governed by Irish law, then, measured by these constitutional standards, a significant issue would arise as to whether the United States “ensures an adequate level of protection for the privacy and the fundamental rights and freedoms” of data subjects, such as would permit data transfers to that country having regard to the general prohibition contained in s. 11(1) of the 1988 Act and the constitutional principles I have just set out. Certainly, given what I have already described as the (apparently) limited protection given to data subjects by contemporary US law and practice so far as State surveillance is concerned, this would indeed have been a matter which the Commissioner would have been obliged further to investigate. 57. It is, however, agreed, that the matter is only partially governed by Irish law and that, in reality, on this key issue Irish law has been pre-empted by general EU law in this area. This is because s. 11(2)(a) of the 1988 Act (as substituted by s. 12 of the Data Protection (Amendment) Act 2003) effects a renvoi of this wider question in favour of EU law. Specifically, s. 11(2)(b) of the 1988 Act provides that the Commissioner must determine the question of the adequacy of protection in the third State “in accordance” with a Community finding made by the European Commission pursuant to Article 25 of the 1995 Directive. It is accordingly for this reason that we must therefore turn to a consideration of the position at EU law. XI The position under EU law 58. The position under EU law is equally clear and, indeed, parallels the position under Irish law, albeit perhaps that the safeguards for data protection under the EU Charter of Fundamental Rights thereby afforded are perhaps even more explicit than under our national law. These fundamental protections are contained in Article 7 and Article 8 of the EU Charter of Fundamental Rights. Article 7 provides:
Everyone has the right to respect for his or her private and family life, home and communications.”
1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.” 61. In Digital Rights Ireland the Court of Justice held that the Data Retention Directive was invalid, precisely because not only did it not contain appropriate safeguards, but it failed to provide for the retention of the data within the European Union with supervisions by an independent authority in the manner required by Article 8(3) of the Charter. As the Court observed (at paras. 65-69):
Moreover, as far as concerns the rules relating to the security and protection of data retained by providers of publicly available electronic communications services or of public communications networks, it must be held that Directive 2006/24 does not provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data. In the first place, Article 7 of Directive 2006/24 does not lay down rules which are specific and adapted to (i) the vast quantity of data whose retention is required by that directive, (ii) the sensitive nature of that data and (iii) the risk of unlawful access to that data, rules which would serve, in particular, to govern the protection and security of the data in question in a clear and strict manner in order to ensure their full integrity and confidentiality. Furthermore, a specific obligation on Member States to establish such rules has also not been laid down. Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive 2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not ensure that a particularly high level of protection and security is applied by those providers by means of technical and organisational measures, but permits those providers in particular to have regard to economic considerations when determining the level of security which they apply, as regards the costs of implementing security measures. In particular, Directive 2006/24 does not ensure the irreversible destruction of the data at the end of the data retention period. In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data... Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.” 63. The Safe Harbour Regime was, of course, not only drafted before the Charter came into force, but its terms may also reflect a somewhat more innocent age in terms of data protection. This Regime also came into force prior to the advent of social media and, of course, before the massive terrorist attacks on American soil which took place on September 11th, 2001. Outrages of this kind - sadly duplicated afterwards in Madrid, London and elsewhere - highlighted to many why, subject to the appropriate and necessary safeguards, intelligence services needed as a matter of practical necessity to have access to global telecommunications systems in order to disrupt the planning of such attacks. XII Conclusions 64. This brings us to the nub of the issue for the Commissioner. He is naturally bound by the terms of the 1995 Directive and by the 2000 Commission Decision. Furthermore, as the 2000 Decision amounts to a “Community finding” regarding the adequacy of data protection in the country to which the data is to be transferred, s. 11(2)(a) of the 1988 Act (as amended) requires that the question of the adequacy of data protection in the country where the data is to be so transferred “shall be determined in accordance with that finding.” In this respect, s. 11(2)(a) of the 1988 Act faithfully follows the provisions of Article 25(6) of the 1995 Directive. 65. All of this means that the Commissioner cannot arrive at a finding inconsistent with that Community finding, so that if, for example, the Community finding is to the effect that a particular third party state has adequate and effective data protection laws, the Commissioner cannot conclude to the contrary. 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. 66. It follows, therefore, that if the Commissioner cannot look beyond the European Commission’s Safe Harbour Decision of July 2000, then it is clear that the present application for judicial review must fail. This is because, at the risk of repetition, the Commission has decided that the US provides an adequate level of data protection and, as we have just seen, s. 11(2)(a) of the 1998 Act (which in turn follows the provisions of Article 25(6) of the 1995 Directive) ties the Commissioner to the Commission’s finding. In those circumstances, any complaint to the Commissioner concerning the transfer of personal data by Facebook Ireland (or, indeed, Facebook) to the US on the ground that US data protection was inadequate would be doomed to fail. 67. This finding of the Commission is doubtless still true at the level of consumer protection, but, as we have just seen, much has happened in the interval since July 2000. The developments include the enhanced threat to national and international security posed by rogue States, terrorist groupings and organised crime, disclosures regarding mass and undifferentiated surveillance of personal data by the US security authorities, the advent of social media and, not least from a legal perspective, the enhanced protection for personal data now contained in Article 8 of the Charter. 68. While the applicant maintains that the Commissioner has not adhered to the requirements of EU law in holding that the complaint was unsustainable in law, the opposite is in truth the case. The Commissioner has rather demonstrated scrupulous steadfastness to the letter of the 1995 Directive and the 2000 Decision. 69. The applicant’s objection is, in reality, to the terms of the Safe Harbour Regime itself rather than to the manner in which the Commissioner has actually applied the Safe Harbour Regime. There is, perhaps, much to be said for the argument that the Safe Harbour Regime has been overtaken by events. The Snowden revelations may be thought to have exposed gaping holes in contemporary US data protection practice and the subsequent entry into force of Article 8 of the Charter suggests that a re-evaluation of how the 1995 Directive and 2000 Decision should be interpreted in practice may be necessary. It must be again stressed, however, that neither the validity of the 1995 Directive nor the validity of the Commission’s Safe Harbour decision have, as such, been challenged in these proceedings. 70. Although the validity of the 2000 Decision has not been directly challenged, the essential question which arises for consideration is whether, as a matter of European Union law, the Commissioner is nonetheless absolutely bound by that finding of the European Commission as manifested in the 2000 Decision in relation to the adequacy of data protection in the law and practice of the United States having regard in particular to the subsequent entry into force of Article 8 of the Charter, the provisions of Article 25(6) of the 1995 Directive notwithstanding. For the reasons which I have already stated, it seems to me that unless this question is answered in a manner which enables the Commissioner either to look behind that Community finding or otherwise disregard it, the applicant’s complaint both before the Commissioner and in these judicial review proceedings must accordingly fail. 71. Given the general novelty and practical importance of these issues which have considerable practical implications for all 28 Member States of the European Union, it is appropriate that this question should be determined by the Court of Justice. In these circumstances, I propose to refer the following questions to that Court in accordance with Article 267 TFEU:
XIII Summary of overall conclusions 73. It remains only to summarise my principal conclusions: 74. First, while it is clear that Mr. Schrems’ complaints are not “frivolous or vexatious” in the ordinary sense of these words, these words bear a different connotation in the context of s. 10(1)(b)(i) of the 1988 Act, at least so far as the present complaint is concerned. Used in this fashion and in this context, these term mean no more than that the Commissioner had concluded that this complaint was unsustainable in law. 75. Second, Mr. Schrems enjoys locus standi to bring this complaint and to bring these proceedings. It is irrelevant that Mr. Schrems cannot show that his own personal data was accessed in this fashion by the NSA, since what matters is the essential inviolability of the personal data itself. The essence of that right would be compromised if the data subject had reason to believe that it could be routinely accessed by security authorities on a mass and undifferentiated basis. 76. Third, the evidence suggests that personal data of data subjects is routinely accessed on a mass and undifferentiated basis by the US security authorities. 77. Fourth, so far as Irish law is concerned, s. 11(1)(a) of the 1988 Act forbids the transfer of personal data to a third country unless it is clear that that jurisdiction sufficiently respects and protects the privacy and fundamental freedoms of the data subjects. In this particular context of national law, the standards in question are those contained in the Constitution. 78. Fifth, the chief constitutional protections are those relating to personal privacy and the inviolability of the dwelling. The general protection for privacy, person and security which is embraced by the “inviolability” of the dwelling in Article 40.5 of the Constitution would be entirely compromised by the mass and undifferentiated surveillance by State authorities of conversations and communications which take place within the home. For such interception of communications to be constitutionally valid, it would, accordingly, be necessary to demonstrate that this interception and surveillance of individuals or groups of individuals was objectively justified in the interests of the suppression of crime and national security and, further, that any such interception was attended by appropriate and verifiable safeguards. 79. Sixth, if the matter were to be measured solely by Irish law and Irish constitutional standards, then a serious issue would arise which the Commissioner would then have been required to investigate as to whether US law and practice in relation to data privacy, interception and surveillance matched these constitutional standards. 80. Seventh, in this regard, however, Irish law has been effectively pre-empted by EU law and specifically by the provisions of the 1995 Directive and the 2000 Decision establishing the Safe Harbour regime. With the July 2000 Decision the European Commission found that US data protection law and practice was sufficient to safeguard the rights of European data subjects and it is clear from Article 25(6) of the 1995 Directive that national data protection authorities must comply with findings of this nature.81. Eight, it follows, therefore, that if the Commissioner cannot look beyond the European Commission’s Safe Harbour Decision of July 2000, then it is clear that the present application for judicial review must fail. This is because the Commission has already decided that the US provides an adequate level of data protection and, as we have just seen, s. 11(2)(a) of the 1998 Act (which in turn follows the provisions of Article 25(6) of the 1995 Directive) ties the Commissioner to the Commission’s finding. In those circumstances, any complaint to the Commissioner concerning the transfer of personal data by Facebook Ireland (or, indeed, Facebook) to the US on the ground that US data protection was inadequate would be doomed to fail. 82. Ninth, while the applicant maintains that the Commissioner has not adhered to the requirements of EU law in holding that the complaint was unsustainable in law, the opposite is, in fact, in truth the case. The Commissioner has rather demonstrated scrupulous steadfastness to the letter of the 1995 Directive and the 2000 Decision. 83. Tenth, the applicant’s objection is, in reality, to the terms of the Safe Harbour Regime itself rather than to the manner in which the Commissioner has actually applied the Safe Harbour Regime, although neither the validity of the 1995 Directive nor the validity of the Commission’s Safe Harbour decision have, as such, been challenged in these proceedings. 84. Eleventh, in these circumstances the critical issue which arises is whether the proper interpretation of the 1995 Directive and the 2000 Commission decision should be re-evaluated in the light of the subsequent entry into force of Article 8 of the Charter and whether, as a consequence, the Commissioner can look beyond or otherwise disregard this Community finding. It is for these reasons accordingly that I have decided to refer this question (and other linked questions) to the Court of Justice pursuant to Article 267 TFEU.
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