Unlimited US intelligence access to EU data is illegal: court adviser

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The unfettered access of US intelligence services to the data of EU citizens violates the bloc’s charter of fundamental rights, an adviser to the European Court of Justice said Wednesday.

The European Union’s top court has been asked to weigh in on a case brought by Austrian activist Max Schrems against the Irish data protection authority, after it rejected his complaint against Facebook’s practice of storing user data in the United States.

Schrems, who has launched several legal actions against the US social media giant, argued in the Irish case that US laws offer no real data protection, based on revelations in 2013 that Washington had carried out mass spying.

The Irish authorities said that the European Commission had found the United States to offer adequate data protection as part of the Safe Harbor system, which has been in place for more than a decade to allow companies in the EU and US to exchange data.

Advocate General Yves Bot argued Wednesday that this decision by the commission was “invalid” and that the EU’s executive should have suspended its Safe Harbor finding.

He also found that the data access enjoyed by US intelligence services runs afoul of the EU right to data protection and the need for proportionality.

Bot is one of nine advocates general who provide legal opinions to the Luxembourg-based court. The judges generally follow the advice. A final ruling by the court is likely to take several more months.

Bot found that EU citizens do not benefit from “effective judicial protection” when it comes to the US large-scale collection and transfer of data, the court said in a statement.

“The advocate general considers furthermore that the access enjoyed by the US intelligence services to the transferred data constitutes an interferences with the right to respect for private life and the right to protection of personal data, which are guaranteed by the charter,” it said.

The inability of EU citizens to challenge the surveillance of their data in the US also runs counter to their right to an effective remedy, Bot found.

He argued that this “interference with fundamental rights is contrary to the principle of proportionality, in particular because the surveillance carried out by the US intelligence services is mass, indiscriminate surveillance,” the court statement said.

National authorities in the EU should be able to suspend data transfers to a country even if the commission has found that it offers adequate data protection, Bot said.

The EU is currently conducting negotiations with the US to strengthen Safe Harbor. EU Justice Commissioner Vera Jourova said this month that she was confident the work could soon be concluded.

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