The case that might cripple Facebook

An Irish judge has rendered a preliminary judgment that may have sweeping consequences for U.S. e-commerce firms. The judgment involves a case by a European privacy activist against Facebook. Businesses like Facebook, Google and Microsoft use an arrangement called Safe Harbor (which I’ve written about at length) to export personal data from Europe to the U.S. They also base their operations in Ireland for tax reasons, and because they see Irish privacy officials as more flexible than their mainland European counterparts. The activist claimed that the Safe Harbor arrangement didn’t protect his personal data, because Snowden’s revelations about NSA surveillance shows that the U.S. don’t protect the privacy of foreigners. The judge seems inclined to think that he’s right.What does the ruling actually involve? So far, nothing binding. The judge hasn’t ruled directly on the major arguments of the privacy activist, because he believes they involve European Union law rather than Irish law. What he has done is to refer the key questions to the European Court of Justice (ECJ), which serves as a kind of Supreme Court on questions of how to interpret European law. This is how everyday judicial politics goes in the European Union — the ECJ’s role is to resolve exactly this kind of query. However, the judge has presented the case to the ECJ in a way that seems designed to get the higher court to rule that the Safe Harbor is incompatible with European human rights standards, and hence invalid.

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