The ACLU Is in Dublin, Ireland, Today Defending the Right to Privacy for Europeans and Americans Alike

Today, lawyers for Facebook will cross-examine ACLU Staff Attorney Ashley Gorski at a court hearing in Dublin, Ireland, about U.S. surveillance policies and privacy protections. The hearing is part of litigation in European courts over whether users’ private data is adequately safeguarded when companies like Facebook move that information from Europe to the United States.

Facebook says that its users’ data is adequately protected, even in the face of sweeping U.S. surveillance programs, like the PRISM program revealed by whistleblower Edward Snowden. It also says that European citizens can readily obtain remedies for illegal surveillance in U.S. courts. But those claims are hard to square with reality. As our ACLU colleague has explained in her expert report, this data is incredibly vulnerable to spying programs operated by the NSA and other U.S. intelligence agencies. Moreover, in practice, the millions of people affected by this spying have few (if any) effective remedies.

Given all we’ve learned in the past three years — and given the dangerous spying powers wielded by our new president — U.S. tech companies must continue their efforts to promote strong surveillance reforms.

Friday’s hearing is part of what is known as the Schrems litigation — a pair of cases brought in European courts following the revelations of NSA spying that began in June 2013. Those disclosures revealed a vast machinery of surveillance, such as the PRISM program operated under Section 702 of Foreign Intelligence Surveillance Act, which the government uses to target tens of thousands of non-U.S. citizens for surveillance with few restrictions. According to NSA documents, Facebook was one of the major internet companies compelled to turn over its users’ stored and real-time communications under PRISM.

The breadth of U.S. government spying is a problem for companies that want to move their users’ data from the European Union to the United States. The E.U. generally prohibits companies from transferring private data out of the E.U. unless that data will receive “essentially equivalent” protection at its destination. The Schrems cases have challenged various protocols that companies like Facebook have relied on to satisfy these legal obligations. The initial challenge concerned the so-called Safe Harbour arrangement, which was invalidated by the Court of Justice for the European Union on privacy grounds in 2015. The present case challenges a new set of protocols that some companies invoked in an attempt to meet E.U. privacy rules after that groundbreaking decision.

The legal issues before the Irish High Court are complex, but what’s at stake is not. The case highlights just how easy it is for U.S. intelligence agencies to access Europeans’ data once it is transferred to the United States. And it highlights also just how few meaningful remedies are available in the United States to those who want to challenge NSA surveillance, whether they are Europeans or Americans. The fact that few individuals receive notice of surveillance, combined with the U.S. government’s repeated use of standing doctrine and the state secrets privilege to block court review, has put redress almost entirely out of reach.

If the European courts ultimately conclude that the U.S. surveillance regime lacks essential protections for E.U. citizens, companies like Facebook may have more difficulty transferring their users’ private data to the United States — at least until the U.S. adopts badly needed reforms to its surveillance laws.

There are several ways that tech companies could push for stronger protections for their users’ data in the face of U.S. government spying.

First and foremost, tech companies must actively lobby members of Congress to reform our surveillance laws — especially Section 702, which is set to expire this year. Tech companies, including Facebook, make contributions to dozens of candidates for the House of Representatives and Senate, including politicians who have introduced anti-privacy measures in the past or have advocated for the resurrection of mass surveillance programs. The message to lawmakers should be clear: If they do not support pro-privacy policies, they should no longer expect to receive Facebook support. Surveillance reform must remain a high priority for tech companies.

Second, tech companies should continue to oppose efforts to expand U.S. surveillance powers or to weaken encryption. In the past, Facebook — to its credit — has challenged efforts to allow the FBI to collect sensitive information, like browsing history, without appropriate court process. In addition, Facebook has stated its opposition to backdoors in encrypted products. Tech companies should continue to resist, both publicly and in the face of any private pressure they receive from the Trump administration. 

Third, tech companies should push back against unilateral efforts by the Trump administration to strip away privacy protections for immigrants and foreigners. For example, the Trump immigration executive order contained a provision stripping anyone who is not a U.S. citizen or green card holder of certain protections under the Privacy Act. As a result, individuals around the world and many immigrants in the United States may now have their private information disseminated without appropriate safeguards.

Now that President Trump has the keys to the US surveillance state, it’s more important than ever that tech companies work with us in the fight for surveillance reform.

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Anonymous

ACLU F**KED UP AMERICA, NOW THEY ARE DOI9NG THE SAME THING TO IRELAND

Anonymous

I am sorry for what I have said. The ACLU is great and I appreciate them for all that they do!

Michigander

Thank you ACLU for all you do!

Anonymous

Where was your concern during the last 8 years? These programs and systems are much older than 3 weeks. The IRS used as a weapon against folks, based on their political view...ACLU silence. Hypocrites.

Anonymous

ACLU STATEMENT FOR THE RECORD ON IRS SELECTIVE ENFORCEMENT FOR THE SENATE FINANCE COMMITTEE - May 21, 2013
https://www.aclu.org/other/aclu-statement-record-irs-selective-enforceme...
Don't let facts get in the way tho...

Anonymous

I apologize, for I know not what I speak of.

Anonymous

https://www.aclu.org/blog/speak-freely/why-todays-landmark-court-victory...
Just one of many examples of ACLU suing the Obama administration on this very issue. Google and you'll find more. Just because you're now focused on ACLU doesn't mean that nothing happened before you paid attention.

Anonymous

SORRY TO BE THE ONE LETTING YOU KNOW ABOUT THE RAMPANT, ILLEGAL , LONG TERM, UNWARRANTED SURVEILLANCE THAT'S BEEN GOING ON! ELKINS V FAA, 1:14-CV-00476, 01791, DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA. IF YOU WANT TO SEE HOW THEY ARE DOING IT, HOW THE COURT'S "PRESUMPTION OF THE TRUTH" IS ABUSED, AND HOW "WILL" IN THE FUTURE LITIGATE AGAINST YOU, AND YOU CAN'T SEE ANY OF THEIR SUBMISSIONS "SEALED" "ON-GOING NATIONAL SECURITY INVESTIGATION" 7(A) THAT'S ALWAYS DROPPED AT THE LAST MOMENT! THIS MEANS THEY CAN'T LEGITIMIZE THE SURVEILLANCE.WAKE UP, 1984 IS ALREADY HERE! ,

Anonymous

TRUE!

Anonymous

The real crisis is that there are no effective government watchdogs, none, that defend their own oath of office to the U.S. Constitution - which includes the Bill of Rights.

Almost all government agencies at the federal, state and local levels view legal First Amendment activities by citizens as essentially "probable cause" to perform an illegal search. It appears, based on 30 years of observation, that these oath-sworn officials and/or oath-sworn contractors then subject citizens to the "Saints Test" - in other words unless you are Mother Teresa you are not allowed to exercise your First Amendment rights - which most citizens can't meet.

It seems that using taxpayer dollars to knowingly launch fraudulent investigations and punitive measures against those legal First Amendment exercises should result in criminal indictment for the bureaucrats misappropriating taxpayer funds. It would still be illegal if using private funds and private contractors if the "probable cause" derived from a goveenment source. Besides the great work of the ACLU - where are the governent cops policing this fraud against taxpayers?

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