The Data Protection Commissioner is "troubled" by Facebook getting comments from the US government on draft reports the company obtained from US law experts on the ongoing Irish action over EU-US data transfers, the High Court was told.

Austrian lawyer Max Schrems, whose complaint over transfer of his data led to the case, shares the commissioner's concern, the court heard.

Facebook and the US government insisted on Wednesday there was nothing untoward about the contacts in circumstances including this case, which was of enormous significance to both, meaning they shared a “common interest privilege”.

Eileen Barrington SC, for the US, said it was anxious to ensure the Irish court had an accurate and complete picture of US law so, if issues were referred to the Court of Justice of the EU (CJEU), that court would have a full picture.

Details of the contacts emerged in the continuing action by the commissioner aimed at having the Irish court ask the CJEU decide on the validity or otherwise of European Commission decisions approving use of data transfer channels known as standard contractual clauses (SCCs).

The commissioner made a draft finding last year that Mr Schrems had “well-founded” objections to the data transfers. The commissioner’s case is against Facebook and Mr Schrems but no orders are sought against them and the purpose is to get a referral.

Safeguards

On Wednesday, Colm O’Dwyer SC, for the US-based Electronic Privacy Information Centre (EPIC), argued US data privacy safeguards for EU citizens are limited in scope and many privacy rules can be modified or repealed by orders of the US executive branch.

US law does not provide EU citizens with effective redress for rights violations arising from authorised surveillance, he also argued. Various remedies permitting challenges to unauthorised surveillance were effectively untenable and the rights of access and correction were strictly limited under the Judicial Redress Act and subject to discretionary policies revocable by the US executive.

Earlier, Brian Murray SC, for the commissioner, said the office was "troubled" about why contacts between Facebook and the US about the legal expert reports, which his side only found out about last week, were not disclosed earlier. He was also "puzzled" that the US government, which presented itself as an amicus curiae (assistant to the court on legal issues), was given the draft reports and proposed changes to those.

He said Facebook’s lawyers told the commissioner last Monday that all but one of its expert reports were provided in draft form to the US government and the US’s comments on the drafts were communicated via Facebook’s solicitors to the experts.

Just one expert – Prof Peter Swire – knew those comments had come from the US government and there were some 70 changes to his report, counsel said. It seemed there were a number of inaccuracies in the first version of Prof Swire's report, he added.

Clarification

Stressing he was not impugning the integrity of any expert, counsel said he needed exact clarification what changes were effected before considering if any further application was necessary.

Paul Gallagher SC, for Facebook, said the US government had made no secret of the importance of this case, which involves an attack on the adequacy of the US legal system, and it would be surprising if it would not have some opportunity of seeing evidence concerning that.

Facebook rejects “absolutely and vehemently” it was required to disclose the comments about draft reports of its witnesses, counsel said. The contacts were privileged because they concerned draft reports of Facebook’s expert witnesses and counsel’s comments on those. Without prejudice to the privilege claim, Facebook would provide a sworn statement on the matter.

Ms Barrington said there was nothing untoward in the role the US has played and what Facebook said concerning the contacts was “entirely correct”. The US got material from Facebook confidentially to enable it decide if it would call evidence or not and it decided not to. Declassification considerations also had to be taken into account in relation to two Facebook experts and all of the US contact was with lawyers for Facebook and it was unaware what happened after that.

Ms Justice Caroline Costello said she would await Facebook's affidavit before considering what effect, if any, the contacts had on the case. It continues on Thursday.