
Irish Supreme Court Dismisses Facebook’s Complaint on NSA Surveillance [pdf] - donohoe
https://noyb.eu/wp-content/uploads/2019/05/SC_PA.pdf
======
bjmurphy
At the time of Max Schrems' first complaints, our Data Protection Commission
was located in a small office in Portarlington above a convenience store. It
is only due to the international embarrassment caused by Schrems' successful
cases (which showed the DPC to be incompetent and unwilling to investigate
complaints) that they have recently received more funding to expand
operations.

There is a tendency in Irish state bodies to always err on the side of the
establishment - Ombudsmen and oversight bodies such as the DPC will rarely
rock the boat by making findings against the State. This leaves citizens with
little option but to take a court case against the State to vindicate their
rights (as Schrems was forced to do when the previous DPC decided his
complaints were "frivolous and vexatious" [1]). The current DPC has yet to
fine a single company under GDPR, something which truly beggars belief.

People like Schrems take a great personal risk in taking court cases in
Ireland. If you lose, you end up paying yours and your opponent's legal fees,
which are huge and essentially bankrupting for the non-wealthy [2] (there are
some exceptions where the judge thinks your case was in the public interest,
but that's decided afterwards). Often cases have to be appealed all the way to
the Supreme Court and the ECJ to find justice. One case against the DPC
regarding access to exam scripts has been in the Irish courts since 2009 and
finally won in the ECJ in 2017 [3].

[1] [https://www.irishtimes.com/news/crime-and-
law/courts/court-t...](https://www.irishtimes.com/news/crime-and-
law/courts/court-to-hear-challenge-to-decision-not-to-investigate-
facebook-1.1776879)

[2] [https://www.irishtimes.com/news/crime-and-law/courts/high-
co...](https://www.irishtimes.com/news/crime-and-law/courts/high-court/woman-
faces-500k-legal-bill-after-court-case-over-64k-fees-1.3692330)

[3] [https://www.irishtimes.com/news/crime-and-law/failed-exam-
ca...](https://www.irishtimes.com/news/crime-and-law/failed-exam-candidate-
gets-right-to-written-paper-in-ecj-ruling-1.3334566)

~~~
wolfi1
Schrems is a citizen of Austria, in Austria you would have to pay the legal
fees of your opponent, too, if you lose.

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havkom
The main parts of this judgement were very unsurprising. It is very well
established in EU law that a higher national court can not order a lower court
to withdraw a reference for a preliminary ruling from the Court of Justice of
the European Union.

EU law normally override EU member state national law. The EU court is the
final interpreter on EU law.

The thinking about lower courts unappealable ability to ask the EU court for
what the EU law is, that a higher or highest national courts should never be
able to suppress a question from reaching the EU court.

Hence, if the Supreme Court in a member state would give a final ruling on a
topic, any lower court that thinks the Supreme Court were wrong on points of
EU law, may always in a following case ask the EU court for final guidance on
what EU law actually means (instead of just following the Supreme Court
ruling). The Supreme Court would in that instance have no means of preventing
that from happening.

~~~
havkom
Additional information if anyone is interested:

In general, I believe for example the US court system hierarchy (where you
appeal instance by instance in serial order) is very different from the EU
court system (when it comes to interpretation on EU law).

Lower courts MAY ask the EU court for guidance on what EU law means while the
court of last instance for a type of case (the highest court) MUST ask the EU
court on what the EU law means if it is not clear.

Here is the relevant text in the Treaty of the Functioning of the European
Union (TFEU):

[https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX...](https://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E267:en:HTML)

If anyone is interested in more information of exceptions from referring to
the EU court you can read up on the doctrine of acte clair and acte eclairé.
This doctrine is now always followed (nd may sometimes be difficult to follow)
by court of last instance so it is important that lower courts can ask if they
think the higher court has made an error in relation to this.

~~~
phkamp
Actually it is not _that_ different.

It is similar how you can move constitutional questions from state to federal
court in the USA, with the main difference being that EU does not have federal
circuits of courts like USA does, but effectively only a supreme court.

------
ginko
>Instead of deciding over the complaint, the DPC has filed a lawsuit against
Facebook and Mr Schrems at the Irish High Court in 2016, aimed at sending
further questions to the CJEU.

Wait what? Why would they also sue Max Schrems over this?

~~~
tankenmate
So that they can refer the matters to the CJEU; although not in it's entirety,
it is a procedural move to get all the parties (including Schrems) and their
complaints / evidence in front of the CJEU to resolve matters that the Irish
DPC feels they aren't in a position to or aren't willing to rule on.

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baybal2
Question: If Facebook denies involvement in or knowledge of PRISM, why did
they want to annul a case against them being in it?

~~~
detaro
From what I understand, the case by now is about "Is what companies use to
justify processing of data in the US as safe acceptable?". The ECJ might very
well find that the current agreements are not sufficient, that data transfer
to the US likely means access by US agencies that is not acceptable, so
Facebook has an interest in there not being a decision by the highest court
about it.

~~~
jokoon
Isn't this slightly related to GDPR?

GDPR, in a way, might also slow down the US from listening to EU members, for
example when related to industrial espionage...

~~~
Shish2k
I wonder if we're heading to a world where any company who wants to run
internationally needs to keep all US-citizen data on US servers, and EU-
citizen data on EU servers?

~~~
testvox
Currently it doesn't look like holding US-citizen data on EU servers will be a
problem anytime soon. But if the EU decides that the protections for their
citizens provided by the "privacy-shield" agreement are not good enough then
it would mean US companies could not hold or control EU-resident's data.

[https://www.ftc.gov/tips-advice/business-center/privacy-
and-...](https://www.ftc.gov/tips-advice/business-center/privacy-and-
security/privacy-shield)

------
dosy
That's awesome. Go Ireland. They benefited somewhat from the tech investment
yet they are not scared to stand up to the same. I like it. They're
historically neutral so perhaps that sort of fits.

~~~
forgotmyhnacc
Why is NSA surveillance awesome? Even if you don't like tech companies.

~~~
detaro
I think you misunderstood the article. The case/result is not in favor of NSA
surveillance.

~~~
wuliwong
I definitely didn't understand the article either. I wasn't sure what this
ruling actually meant. :)

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vectorEQ
next up. irish supreme court dismisses NSA's complaint on facebook
surveillance

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jermaustin1
There is definitely a joke waiting to be written about Facebook not wanting
their user's data to be accessed (without payment, at least).

