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By Ali Qassim
LONDON--Ireland's Office of the Data Protection Commissioner (ODPC) will not investigate complaints relating to Facebook Ireland Inc.'s and Apple Distribution International's alleged transfer of European Union citizens' data to the U.S. National Security Agency via the NSA's PRISM internet surveillance program, ODPC Senior Compliance Officer Ciara O'Sullivan told BNA July 30.
A Vienna, Austria-based group of student lawyers June 23 filed separate complaints with the ODPC against Apple and Facebook alleging that their participation in the PRISM program violated the EU Data Protection Directive (95/46/EC) and Ireland's Data Protection Act 1998.
In a letter dated July 23, O'Sullivan said the DPA had concluded that it would not investigate Apple and Facebook--whose EU headquarters are in Dublin--regarding their alleged participation in the PRISM program because the companies were both participants in the U.S.-EU Safe Harbor Program “and as this provides for US law enforcement access, there is nothing to investigate.”
Under the Data Protection Directive, the personal information of EU citizens may be transferred out of the European Economic Area--the 28-member-state EU bloc plus Iceland, Liechtenstein, and Norway-- only if the European Commission deems the receiving country's data protection regime to be “adequate.”
The Commission granted adequacy status to the U.S.-EU Safe Harbor Program in 2000. Under the program, U.S. companies self-certify to the Commerce Department that they will abide by EU data protection principles.
O'Sullivan highlighted the Safe Harbor Program's provision for access by U.S. law enforcement authorities and a provision in Section 11(2) of the Data Protection Act that allows transfers consistent with approvals by the European Commission.
A recital in the Commission's U.S.-EU Safe Harbor Program approval decision allows, however, for review of the program “in the light of reports on implementation by enforcement authorities involved,“ O'Sullivan said.
In a July 25 statement, Max Schrems, the spokesman for the Austria-based lawyers, took issue with the ODPC's decision. He highlighted the difference between the decision and the response of German DPAs to revelations about the PRISM program, in which they announced a crackdown on privacy violations involving countries outside the European Union and called for the German government to suspend participation in the U.S.-EU Safe Harbor Program (12 PVLR 1329, 7/29/13).
“The different reaction in the member states shows that European fundamental rights are not worth the paper they are written on, if your opponent is headquartered in the right country,” Schrems said in the statement.
He suggested that since Ireland has failed to provide redress over PRISM, the complaints should fall within the jurisdiction of the European Court for Human Rights to answer “whether Ireland has adequately protected our right to privacy by allowing Europeans' data to be forwarded to a foreign spy agency in bulk.”
After a June 14 U.S.-EU Justice Ministerial meeting in Dublin, European Commission Vice-President Viviane Reding announced that U.S. and EU officials would be meeting to discuss data protection issues related to PRISM (12 PVLR 1049, 6/17/13).
O'Sullivan told BNA that the ODPC welcomed high level discussions between EU and U.S. officials over “the proportionality and oversight arrangements for programs such as PRISM.”
A redacted version of the Irish DPA's response letter to complaints about Facebook and Apple, as posted by the advocacy group student group Europe v. Facebook, is available at http://www.europe-v-facebook.org/Response_23_7_2013.pdf.
Europe v. Facebook's complaint against Facebook is available at http://www.europe-v-facebook.org/prism/facebook.pdf.
Europe v. Facebook's redacted complaint against Apple is available at http://www.europe-v-facebook.org/prism/apple.pdf.
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