Facebook is firing up its lawyers to try to block EU regulators from forcing it to suspend transatlantic data transfers in the wake of a landmark ruling by Europe’s top court this summer.
The tech giant has applied to judges in Ireland to seek a judicial review of a preliminary suspension order, it has emerged.
Earlier this week Facebook confirmed it had received a preliminary order from its lead EU data regulator — Ireland’s Data Protection Commission (DPC) — ordering it to suspend transfers.
That’s the logical conclusion after the so-called Schrems II ruling which struck down a flagship EU-US data transfer arrangement on the grounds of US surveillance overreach — simultaneously casting doubt on the legality of alternative mechanisms for EU to US data transfers in cases where the data controller is subject to FISA 702 (as Facebook is).
Today The Currency reported that Dublin commercial law firm, Mason Hayes + Curran, filed papers with the Irish High Court yesterday, naming Ireland’s data protection commissioners as defendant in the judicial review action.
Facebook confirmed the application — sending us this statement: “A lack of safe, secure and legal international data transfers would have damaging consequences for the European economy. We urge regulators to adopt a pragmatic and proportionate approach until a sustainable long-term solution can be reached.”
In further remarks the company did not want directly quoted it told us it believes the preliminary order is premature as it said it expects further regulator guidance in the wake of the Schrems II ruling.
It’s not clear what further guidance Facebook is hankering for, nor what grounds it is claiming for seeking a judicial review of the DPC’s process. We asked it about this but it declined to offer any details. However the tech giant’s intent to (further) delay regulatory action which threats its business interests is crystal clear.
The original complaint against Facebook’s transatlantic data transfers dates all the way back to 2013.
This kinda shows (a) how they will use every opportunity to block a case, even before there is a decision and (b) how it is wholly illusionary to get such a case through in a couple of weeks/months in the Irish legal system…
— Max Schrems
(@maxschrems) September 11, 2020
Ireland’s legal system allows for ex parte applications for judicial review. So all Facebook had to do to file an application to the High Court to challenge the DPC’s preliminary order is a statement of grounds, a verifying affidavit and an ex parte docket (plus any relevant court fee). Oh and it had to be sure this paperwork was submitted on A4.
The DPC’s deputy commissioner, Graham Doyle, declined to comment on the latest twist in the neverending saga.
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