Facebook trying to introduce ‘Trojan horse’ in data case, court told

The Data Protection Commissioner has told the High Court new restrictions on collection of some personal data by the US National Security Agency have "nothing to do" with the key issues in her case over the validity of EU-US data transfers.

Michael Collins SC, for the commissioner, also voiced concern that Facebook’s drafting of a list of issues arising from the new restrictions was an attempt to introduce a “Trojan horse” when the commissioner’s case had concluded and judgment was awaited.

Paul Gallagher SC, for Facebook, said his side was against any reopening of the case, was not "wedded" to its list of issues and it was for the court to decide how to deal with the information.

The restrictions – announced in April after judgment was reserved in March on the commissioner's case – were raised with Ms Justice Caroline Costello earlier this week by Eileen Barrington SC, for the US government, an amicus curiae (assistant to the court on legal issues) in the case.

Counsel described them as a “significant” development relevant to the court’s consideration of some issues.

In her action, commissioner Helen Dixon essentially wants the Irish court to ask the Court of Justice of the EU to decide the validity or otherwise of European Commission decisions approving data transfer channels known as standard contractual clauses (SCCs).

Her case is against Facebook Ireland – because Facebook's European headquarters are here – and Austrian lawyer Max Schrems who both, but for different reasons, oppose referral. The US government is among several parties joined as amici curiae.

Information

This week, Facebook agreed with the US that the court should have regard to the information about the data collection restrictions and also agreed Facebook, as a party to the case, would introduce it.

The commissioner did not object to the court receiving the material but disputed its relevance to the core issues for decision. Mr Schrems’s side argued the material was irrelevant and said it should not be received at all.

The judge agreed to read the material and adjourned the matter to Friday when, after hearing arguments concerning how the material should be addressed, she said she would receive and read a brief outline of the views of the sides’ experts about the information .

She will then decide whether to hear brief submissions from the parties and amici and, if so, will hear those on June 1st.

The new information arises from communications issued by the NSA last April about ceasing certain data collection activities under its Upstream internet programme. The NSA communication followed an opinion of the US foreign intelligence surveillance court.

While the NSA has historically been authorised to acquire communications to, from, or “about” a target under section 702 of the Foreign Intelligence Security Act through Upstream, it said it would no longer collect communications “about” a target.

On Friday, Mr Collins, for the commissioner, said this material was just about a change in practice by the NSA in relation to “about” communications. While of interest, it had “nothing to do” with the issues the court has to decide concerning rights and remedies for EU citizens whose data-privacy rights are breached and it was important the case not be reopened at this stage.

Mr Gallagher said Facebook was not seeking to reopen any issue but considered the practices of the NSA are relevant.

Eoin McCullough SC, for Mr Schrems, said any experts meeting should concentrate only on the information itself and there should be no legal submissions.

Ms Barrington and Colm O’Dwyer SC, for the Electronic Privacy Information Center, said they would like to make short submissions about the data announcements.