Brussels, 05/10/2015 (Agence Europe) - With the Court of Justice of the European Union due to deliver its ruling on Tuesday 6 October on Safe Harbor, which frames the “commercial” transfer of personal data between the EU and the United States, the US government has once again tried to present its position and to correct statements which it feels are inaccurate.
On 23 September, the Advocate General of the Court of Justice delivered an opinion, concerning Facebook in particular, in which he said that a member state may suspend the Safe Harbour decision and, thus, the transfer of personal data to the United States (see EUROPE 11395). The US government reacted in a press release published on 29 September, arguing that the opinion was based on information that was not up to date and regretting that no real investigation of the facts had been carried out.
On Monday 5 October, in an opinion piece published in the Financial Times, Robert Litt, general counsel of the Office of the Director of US National Intelligence, again sought to put across Washington's message, since the US government had not had the opportunity to contribute directly to the Court. Noting that over 4,400 companies depend on the Safe Harbor framework, which has been in force since 2000 allowing them to exchange data, Litt reiterates the criticism that the Advocate General's opinion is based on press articles that relate to Prism, the NSA surveillance programme revealed by Edward Snowden in 2013 and has no connection with Safe Harbor, according to the US. Litt says that the case was filed in Ireland and is based on press reports about the United States' foreign intelligence programme, known as Prism, which, the action says, allows unlimited access to mass data stored on servers in the United States. The Irish High Court, he argues, accepted this caricature, as did the Advocate General, when, in fact, the available information demonstrates the opposite.
Litt states that, since the 2013 revelations, President Barack Obama has ordered large-scale public disclosures on this issue. Court documents have been delivered and two independent bodies have published reports on United States' surveillance practices, he goes on. These publicly available sources, Litt continues, describe exactly the Prism programme, which is another name for the gathering of foreign intelligence subject to judicial oversight under the terms of Article 702 of the Foreign Intelligence Surveillance Act. In his view, this proves that Prism is not simply the blind gathering of mass information, and, in this, he is backed up by US civil organisations, he claims.
Last year, there were 90,000 surveillance targets under Article 702. That may seem a great many, Litt concedes, but it is an infinitesimally small proportion of the 3.2 billion people worldwide who use the internet, he says. Several associations have expressed concern that the Court of Justice may, on Tuesday, annul Safe Harbor. These include DigitalEurope, which represents digital companies. It fears a negative impact on international data flows and damage to the creation of a digital single market in Europe. The European Commission, which believes that suspension of the Safe Harbor agreement would adversely affect economic interests on both sides of the Atlantic, will give its response to the Court ruling at a press conference with First Vice-President Frans Timmermans and Commissioner Vera Jourova. (Original version in French by Solenn Paulic)