The United States Mission to the European Union has responded to the opinion by the Court of Justice of the European Union’s Advocate General Yves Bot that the current Safe Harbour scheme may be illegal because of NSA spying. It claims that the US “does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens.” As reported by Ars last week, the ability of companies to transfer the personal data of EU citizens to the US is under threat because Bot believes that the Safe Harbour’s privacy safeguards are inadequate. In particular, Bot was concerned about what he called the the “mass, indiscriminate surveillance” of EU citizens under the PRISM programme, which is believed to give the NSA direct access to all personal data held by Facebook and other US companies in their databases.
In a statement issued yesteday, The United States Mission to the European Union—effectively, the US embassy to the EU—desperately tries to refute the Advocate General’s logic. That’s because US companies will be unable to rely on the Safe Harbour framework, and their data transfers across the Atlantic will be illegal under EU law, if the Court of Justice of the European Union (CJEU) follows his arguments, as usually happens. The US Mission writes: “The Advocate General’s opinion notes that it was required to accept the facts as found by the Irish High Court. There was, however, no actual fact-finding in this case; instead, the Irish High Court concluded, on the basis of exhibits to plaintiff’s affidavits that the accuracy of his allegations regarding U.S. intelligence practices ‘is not in dispute.’ But that is simply not the case.”
The US Mission to the EU bravely attempts to argue that “the PRISM program that the Advocate General’s opinion discusses is in fact targeted against particular valid foreign intelligence targets, is duly authorized by law, and strictly complies with a number of publicly disclosed controls and limitations.” Of course, being “targeted against particular valid foreign intelligence targets” is pretty worthless given that all foreigners are considered fair game by the NSA, and have no legal protections against surveillance in US law. When Snowden’s leaks about PRISM appeared in The Guardian, James R. Clapper, Director of National Intelligence, emphasised this point in his official response. He wrote: PRISM “cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States;” by contrast, “information collected under this program is among the most important and valuable foreign intelligence information we collect.”