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Privacy First sends letter of summons to Facebook over illegal data transfer to US

Tuesday, 15 December 2015

Today the Privacy First Foundation and three other public interest groups as well as a number of Dutch individual users of Facebook, WhatsApp and Instagram request Mark Zuckerberg to join the public debate following the landmark Schrems-judgment of the European Court of Justice.

On 6 October 2015, the European Court of Justice invalidated the Safe Harbour Decision, which was the basis for Facebook’s transfer of personal data from the European Union to the United States. The Grand Chamber of the Court found that the legislation of the United States fails to ensure a level of protection essentially equivalent to that guaranteed in the legal order of the European Union. The NSA has access to Facebook content of users from the European Union, without any judicial redress being available to them. The Court held that this compromises the essence of the fundamental right to privacy. These issues have not been resolved yet.

Following the judgment, Facebook continued the transfer of personal data from the European Union to the United States. Bas Filippini of Privacy First says: ‘Absent an adequate level of protection in the United States, the continued transfer of personal data is clearly incompatible with European data protection laws. Such transfer violates the rights of millions of individuals. If this is not resolved shortly, we will initiate legal action.’

To date, Facebook has been remarkably absent in the public debate that followed this landmark judgment. Ton Siedsma of Bits of Freedom says: ‘We invite Facebook to publicly engage in a meaningful and transparent dialogue aimed at finding a solution, and to pressure the authorities to find such solution. Facebook is invited to publicly share its current and intended policies and practice on data transfer.’

Today, Facebook was summoned to come up with an adequate solution ultimately by 15 January 2016. If it fails to do so, civil rights groups and a number of Dutch individuals will request the Court in The Hague to grant an injunction ordering Facebook to immediately cease the transfer of personal data to the United States. This pertains to all services of Facebook, including WhatsApp and Instagram.

‘As long as the United States fails to provide an adequate level of protection against mass surveillance, personal data may not be transferred to the United States. Taking Facebook to court emphasizes the urgency of resolving this issue.’ says Jelle Klaas of the Public Interest Litigation Project of NJCM, the Dutch section of the International Commission of Jurists. ‘Our goal is not to put the screens of millions of users to black, but to enhance the current level of privacy protection. Hopefully, a solution can be found shortly by the legislators.’

Click HERE for our entire letter of summons to Mark Zuckerberg (pdf).

Update 21 January 2016: shortly before the deadline Facebook responded to our letter of summons by fax, click HERE (pdf). According to Facebook, there is still a suitable legal basis for the transfer of personal data from the EU to the US, despite the invalidity of Safe Harbour. Privacy First et al. contest this and have today sent a response to Facebook, click HERE (pdf).

In the discussion about a newly proposed surveillance bill in England, Facebook, following our summons letter, has made it publicly clear that:

“Governments should not be able to compel the production of private communications content absent authorization from an independent and impartial judicial official. (...) Surveillance laws should not permit bulk collection of information. The principles require that the Government specifically identify the individuals or accounts to be targeted and should expressly prohibit bulk surveillance.”

However, it is precisely these aspects where, according to the European Court of Justice, the legal protection in the US is inadequate. In our letter of this afternoon, Privacy First et al. have therefore requested Facebook to present their standpoint also in the debate about mass surveillance in the US. Negotiations about this issue are currently ongoing between the EU and the US. It would be good if Facebook gets involved in this debate, in line with the standpoint it voiced in relation to the English legislative proposal.

If in the short term a solution will not be found for the fundamental privacy issues the European Court of Justice has identified, Privacy First et al. will consider bringing interim injunction proceedings before the district court of The Hague.

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