Europe’s highest court strikes down Safe Harbour data sharing between EU and US

[Martinus]

It's based on a false finding of facts, namely that US law permits public authorities  to  have  access  on  a
generalized basis to the content of electronic communications.

That claim is repeated several times.

It's a European court.  Facts must cede pride of place to politics.

It's actually one of the most rigorous and well-respected courts on the face of the Earth. But sure, go ahead and spout your racist nonsense.

[Eddie Teach]

Grumbler is racist against white people? 

[The Minsky Moment]

The ECJ is well-respected, but like all human institutions, prone to fallibility.

The decision presents certain peculiarities from the POV of a common law lawyer.  It states that the case before it is a request for a preliminary ruling, which I understand to be a request from a national level court for a ruling or interpretation of European law.  That much is understandable and has parallels I am familiar with, although in the US it is almost always the other way around - a national level court certifying an issue of state law to a state court.

In the US context, however, such requests are always seeking opinions of law - matters of fact finding remain with the court originating the request, for reasons I think both obvious and sound.

The request in the ECJ decision appears to relate to validity of a decision of the Commission - namely one that among other things, certified that the US provided adequate protection for personal data.  But the ECJ does not appear to confine itself to a purely legal view of the Decision, but makes findings that it is unsupportable in reference to certain alleged facts.  At the same time, it doesn't indicate a basis or source for all the facts it relies on - most notably the claim concerning US "legislation" that authorized general collection.  Usually when a court refers to "legislation" as a basis for ruling, there is a citation is that legislation, even if foreign law.  That doesn't occur though, presumably because the US legislation in question doesn't exist. 

There are things in the ECJ decision that seem sound.  It identifies correctly the weakness in the inability of affected persons to challenge or contest FISA rulings.  It's a problem (albeit one for decades without much European complaint) and IMO an affront to US constitutional principles as well as European ones.  I would like to see that change.    Whether that deficiency is in itself sufficient basis as a matter of European law to overturn the Commission's finding of adequate protection I cannot say.

[Martinus]

The ECJ is well-respected, but like all human institutions, prone to fallibility.

The decision presents certain peculiarities from the POV of a common law lawyer.  It states that the case before it is a request for a preliminary ruling, which I understand to be a request from a national level court for a ruling or interpretation of European law.  That much is understandable and has parallels I am familiar with, although in the US it is almost always the other way around - a national level court certifying an issue of state law to a state court.

In the US context, however, such requests are always seeking opinions of law - matters of fact finding remain with the court originating the request, for reasons I think both obvious and sound.

The request in the ECJ decision appears to relate to validity of a decision of the Commission - namely one that among other things, certified that the US provided adequate protection for personal data.  But the ECJ does not appear to confine itself to a purely legal view of the Decision, but makes findings that it is unsupportable in reference to certain alleged facts.  At the same time, it doesn't indicate a basis or source for all the facts it relies on - most notably the claim concerning US "legislation" that authorized general collection.  Usually when a court refers to "legislation" as a basis for ruling, there is a citation is that legislation, even if foreign law.  That doesn't occur though, presumably because the US legislation in question doesn't exist. 

There are things in the ECJ decision that seem sound.  It identifies correctly the weakness in the inability of affected persons to challenge or contest FISA rulings.  It's a problem (albeit one for decades without much European complaint) and IMO an affront to US constitutional principles as well as European ones.  I would like to see that change.    Whether that deficiency is in itself sufficient basis as a matter of European law to overturn the Commission's finding of adequate protection I cannot say.

I admit I have not studied the ruling in detail yet (and am generally not a constitutional lawyer), but I understand that the peculiarity you mention may have something to do with a peculiar nature of the safe habour decision in the first place - i.e. that it was a decision of the European Commission that established a presumption of fact (namely that the US is deemed to be a permitted transferee when it comes to sharing of personal data of Europeans, under the legislation that permits sharing data with countries which ensure comparable protection to that of the EU law).

The ECJ is the only court within the EU capable of striking down the decision, as national courts cannot rule on acts and decisions of the EU law - and in fact a lot of its rulings concern finding on facts and striking down the Commission's decisions (for example, in antitrust or state aid cases).

So I guess the only unusual part is that this ruling came through a preliminary ruling procedure.

[Martinus]

I guess some confusion for Americans (and I am not talking about you, Minsky, but grumbler etc.) may come from the fact that the ECJ (and its lower court, the Court of First Instance) is not in fact the EU's highest court in the same sense the Supreme Court of the US is.

It has a dual role and it is that of (1) "constitutional" court of the EU which finds out about various legal acts of the EU being consistent with the higher level EU legislations (and in this case it cannot really find on facts), but also that of (2) "normal" appeal court for decisions of the EU commission (in which case it acts like an ordinary appellate court, that can find on facts).

[Berkut]

The ECJ is well-respected, but like all human institutions, prone to fallibility.

The decision presents certain peculiarities from the POV of a common law lawyer.  It states that the case before it is a request for a preliminary ruling, which I understand to be a request from a national level court for a ruling or interpretation of European law.  That much is understandable and has parallels I am familiar with, although in the US it is almost always the other way around - a national level court certifying an issue of state law to a state court.

In the US context, however, such requests are always seeking opinions of law - matters of fact finding remain with the court originating the request, for reasons I think both obvious and sound.

The request in the ECJ decision appears to relate to validity of a decision of the Commission - namely one that among other things, certified that the US provided adequate protection for personal data.  But the ECJ does not appear to confine itself to a purely legal view of the Decision, but makes findings that it is unsupportable in reference to certain alleged facts.  At the same time, it doesn't indicate a basis or source for all the facts it relies on - most notably the claim concerning US "legislation" that authorized general collection.  Usually when a court refers to "legislation" as a basis for ruling, there is a citation is that legislation, even if foreign law.  That doesn't occur though, presumably because the US legislation in question doesn't exist. 

There are things in the ECJ decision that seem sound.  It identifies correctly the weakness in the inability of affected persons to challenge or contest FISA rulings.  It's a problem (albeit one for decades without much European complaint) and IMO an affront to US constitutional principles as well as European ones.  I would like to see that change.    Whether that deficiency is in itself sufficient basis as a matter of European law to overturn the Commission's finding of adequate protection I cannot say.

I admit I have not studied the ruling in detail yet

But you didn't let that stop you from drawing a conclusion, of course.

[Martinus]

 

[Zanza]

It's based on a false finding of facts, namely that US law permits public authorities  to  have  access  on  a
generalized basis to the content of electronic communications.

That claim is repeated several times.

It's a European court.  Facts must cede pride of place to politics.

I guess they actually decided based on facts, namely that your intelligence agencies are lawless and don't even adhere to the spirit of the US constitution or actual US legislation. So in a way you are right, it was a decision following politics, not written law. Because the written law has no relation to reality. When a state like the US no longer applies its own laws, an agreement like Safe Harbour with such a state becomes worthless a nd does not protect EU citizens.

Edit: To make it more concise: The highest court of the EU just said that the US government is no longer a trustworthy partner. That's just the price for indiscriminate spying on everyone. I guess you have to decide whether it is worth that.

[Razgovory]

Our intelligence agencies have laws.  They just don't protect foreign governments.

[The Minsky Moment]

Our intelligence agencies have laws.  They just don't protect foreign governments.

Foreign governments aren't at issue here.  Foreign individuals are.  The laws do protect such individuals because they put limitations on how and what information can be collected, and while there is more limitations vis-à-vis US citizens, authority is not unlimited as to foreign individuals.

[The Minsky Moment]

I guess they actually decided based on facts, namely that your intelligence agencies are lawless and don't even adhere to the spirit of the US constitution or actual US legislation.

The only incident I'm aware of for which that claim could be made was the bulk metadata collection.  I'd agree that was lawless (although in fairness it's complicated enough that at least one appeals court with some pretty smart judges on found otherwise).

The bulk metadata program is being shut down and was not the basis of he ECJ decision.

The ECJ decision is based on:
(1) the fact that US intelligence agencies complying with the law can and do collect extensive data concerning foreign persons suspected of terrorist activities without a formal warrant, which can also include the of data of other (potentially innocent) persons who  communicated with the target.
(2) the fiction/misunderstanding that there is some other program out there ("PRISM" or some other acronym) under which US agencies have generalized access to electronic communications.

[Zanza]

(2) the fiction/misunderstanding that there is some other program out there ("PRISM" or some other acronym) under which US agencies have generalized access to electronic communications.

[Martinus]

Ok, so having now read the ruling it does not seem to hinge on the consideration of facts about whether the US in fact provides sufficient data protection.

The crux of the ruling is that the Commission had no authority to issue a safe harbour decision which would have the effect of preventing national courts from being able to examine, on their own, the facts of the case as to whether the US provides sufficient protection to data - in other words, the ECJ has ruled that this is a matter for national courts to decide when applying the data protection law.

So I guess we are discussing a straw man.

[Martinus]

It's based on a false finding of facts, namely that US law permits public authorities  to  have  access  on  a
generalized basis to the content of electronic communications.

That claim is repeated several times.

Where is the claim repeated? In the actual ruling or press coverage of it?

This is what the plaintiff claimed by lodging the complaint with the Irish court. The Irish court asked a preliminary question to the ECJ whether it is entitled to review that complaint, in light of the Commission's safe harbour decision that says the US system is kosher. The ECJ simply stated that the safe harbour decision is illegal, as the Commission does not have power to preclude a national court from making such a determination based on its own consideration of facts.

[Martinus]

So wait, is this really the case of the journalist misunderstanding the ruling, Minsky misunderstanding the article and then a bunch of ignorant blowhards going on a tirade about "stupid EU courts"?