Proposed immigration exemption in UK Data Protection Bill

Having co-signed an Open Rights Group coordinated letter to EU Commissioners Frans Timmermans, Věra Jourová, and Tiina Astola about the proposed immigration exemption in UK Data Protection Bill, I have now written to my local MP, Layla Moran, on the matter. Copies of both communications below.

Dear Layla,

The UK government are proposing to incorporate an unconscionable clause in the Data Protection Bill, currently going through parliament, relating to immigrants. The immigration exemption provision removes individuals’ right to data protection if it is likely to prejudice “effective immigration control”. This will remove the right of individuals to receive information from a subject access request: a core mechanism in any immigration dispute.

According to the Chief Inspector of Borders and Immigration 10% of immigration dispute cases involved administrative errors, errors that can throw people’s lives into disarray. The Guardian is one of the few mainstream media outlets making any effort to report on the devastating impact of the government’s destructive approach to immigration and has covered stories of numerous people who have been in the UK for, in some cases, decades being deported or threatened with deportation. Some of these have been able to challenge the bureaucratic brutality of Home Office mistakes affecting them. If the proposed immigration exemption clause passes into law in the new data protection legislation it will callously derail the capacity of future victims of Home Office errors to defend themselves.

Along with a number of other concerned academics I have co-signed a letter, co-ordinated by the Open Rights Group, to EU commissioners, Frans Timmermans, Věra Jourová, and Tiina Astola asking that they intercede with the UK government on this matter. Copies have also been sent to Guy Verhofstadt, chief Brexit representative of the European Parliament, and the European Data Protection Supervisor,  Giovanni Buttarelli. I include a full copy of the letter below. It is also available at https://www.openrightsgroup.org/ourwork/correspondence/letter-to-eu-commissioners.

The immigration exemption does not belong in the Data Protection Bill. Please use your voice in Parliament to encourage your fellow MPs to ensure it is removed from the Bill.

Regards,

Ray Corrigan

Concern over United Kingdom’s proposed ‘immigration exemptions’ from Data Protection Bill

Dear Frans Timmermans, Věra Jourová, and Tiina Astola

We, the undersigned, write to express our concern regarding the UK Government’s incorporation of the General Data Protection Regulation into domestic law. Setting aside other areas of concern, the UK’s Data Protection Bill proposes an exemption that would remove individuals’ fundamental right to data protection if it is likely to prejudice “effective immigration control”.

This proposed exemption (‘the immigration exemptions’) will remove the right of individuals to receive information from a subject access request: a core mechanism in any immigration dispute. Further restrictions would remove the government’s responsibility to process an individual’s data in accordance with the principles of data protection including lawful, fair and transparent processing. The exemption would allow data to be shared across UK government institutions without accountability or opportunity for recourse.

The immigration exemptions would potentially leave EU citizens applying for residency post- Brexit without access to their personal data at the most crucial time. As a result, decisions taken about a person’s right to remain which may be based on incorrect information would not be rectified, because individuals would be unable to see that the personal data held is incorrect.

EU citizens could be mistakenly forced to leave the United Kingdom as a result of the immigration exemptions.

Further, the proposed immigration exemptions would appear to violate both the General Data Protection Regulation and the Charter of Fundamental Rights:

- The General Data Protection Regulation Article 23(1) stipulates that any restrictions underthe clause must “respect the essence of the fundamental rights and freedoms and [must be] a necessary and proportionate measure in a democratic society...”.

- Under Article 8 of the Charter of Fundamental Rights every individual in the European Union is entitled to the protection of personal data concerning him or her. This includes the right of access to data which has been collected concerning him or her, and the right to have it rectified.

The blanket immigration exemptions go beyond the necessity and proportionality of restrictions under Article 23 of the GDPR and directly interfere with an individual’s right of access to data, and for their data to be processed fairly under Article 8 of the Charter of Fundamental Rights.

We are concerned about the potential impact the immigration exemptions will have on the United Kingdom’s adequacy when it leaves the European Union. The judgment by the Court of Justice of the European Union in Maximillian Schrems v. Data Protection Commissioner C- 362/14, lays out at para 74 in no uncertain terms, that the practical requirement for adequacy requires:

“...protection essentially equivalent to that guaranteed within the European Union.”

And at para. 95:

“Legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter.”

Each of you represent an institution which holds a mandate to protect the interests of EU citizens and uphold the Charter of Fundamental Rights. That mandate includes the respect of these rights by member states.

We believe these proposed exemptions are particularly significant to all EU citizens currently resident in the United Kingdom in maintaining the protection of rights guaranteed to them in the Charter of Fundamental Rights.

We call on you:

- to communicate to the United Kingdom that the immigration exemptions must be removed to secure the compatibility with the essence of the fundamental right to data protection, and the Charter of Fundamental Rights; and

- to examine the exemptions impact on EU citizens’ ability to enforce their residency rights after Brexit under the agreements currently being brokered.

Yours sincerely,

Douwe Korff, Emeritus Professor of International Law, London Metropolitan University and Associate, Oxford Martin School of the University of Oxford

Judith Rauhofer, Lecturer in IT Law, University of Edinburgh

Dr Andrew A. Adams, Deputy Director, Centre for Business Information Ethics, Meiji University, Tokyo, Japan

Anna Fielder, Trustee and Chair Emeritus, Privacy International

Mike O’Neill, Director, Baycloud Systems, The Oxford Centre for Innovation

Marie Georges, Independent expert and member of the FREE Group

Prof Andy Phippen, University of Plymouth

Dr Reuben Binns, Department of Computer Science, University of Oxford

Dr Robin Callender Smith, Professor of Media Law, QMUL Information Rights Judge and former Immigration Judge

Dr Paul Bernal, Senior Lecturer in IT, IP and Media Law, University of East Anglia Law School Milena Popova, Digital Cultures Research Centre, UWE Bristol

Dr. Maureen O. Mapp, Lecturer and Module leader for Cyberlaw, University of Birmingham Law School

Dr Duncan Campbell, Visiting Senior Fellow (Law and Sociology), University of Sussex

Dr. Nicholas J. Gervassis, Lecturer in Law, University of Plymouth

Damian Tambini, Associate Professor, London School of Economics

Dr Sally Broughton Micova, Lecturer in Communications Policy and Politics, University of East Anglia

Vian Bakir, Professor in Political Community and Journalism, Bangor University

Ray Corrigan, Senior Lecturer, Science Technology Engineering & Mathematics Faculty, The Open University

Lilian Edwards, Professor of E-Governance, Law School, Strathclyde University Marian Petre, Professor of Computing, The Open University

Blaine Price, Professor of Computing, The Open University

Andrew McStay, Professor of Digital Life, Bangor University

Marian Petre, Professor of Computing, The Open University

Milena Popova, Digital Cultures Research Centre, UWE Bristol

Note: This letter was sent in copy to Guy Verhofstadt, chief Brexit representative of the European Parliament, and the European Data Protection Supervisor 

Update: In the quickest response I have ever had from an MP, Layla Moran says:

Dear Ray Corrigan,

Thank you for taking the time to email me. In short, I absolutely share your concerns and I am planning on speaking out against them when the Data Protection Bill comes before MPs in a fortnight’s time. I know my Lib Dem colleagues are also in favour of removing this clause.

With best wishes, Layla

Layla Moran MP
Liberal Democrat Member of Parliament for Oxford West and Abingdon

CJEU Schrems, The Irish Data Protection Commissioner and Facebook

The Court of Justice of the European Union has today declared the EU-US Safe Harbour agreement, which  facilitates the transfer of personal data from the EU to the US, invalid.

The Court opens by highlighting the provisions of the 1995 Data Protection Directive

Object of the Directive

1. In accordance with this directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.

Article 25 of the directive lays down the principles under which it may be permitted to transfer personal data to countries outside the EU, "a third country" (or countries), primarily that the 3rd country offer "an adequate level" of data protection. The European Commission has the power to declare 3rd countries compliant with EU standards but are obliged to engage in due diligence in accordance with procedures outlined in article 31 of the directive, to ensure the requisite checks and balances are in place.

Under article 26, EU member states can sanction personal data transfers to third countries not yet in possession of the Commission's seal of approval under a specific set of circumstances e.g. if the person whose data is to be transferred agrees to it.

From an initial scan of the decision, it seems that the Safe Harbour agreement of 2000, declaring the US a safe 3rd country for EU personal data transfers, has been declared invalid by the Court because the EU were not careful enough in checking out the US; and because untrammeled US mass surveillance practices would appear to make it an unsafe third country.

From paragraph 5, the Court outlines the Commission's Safe Harbour Decision 2000/520 (including principles and US organisations' self certification and dispute resolution processes) declaring the US a safe third country for personal data transfers. The agreement allowed for US law to override Safe Harbour obligations. So if US law explicitly imposes an obligation on US organisations to process or transfer data in ways that would breach the Safe Harbour principles it is ok for them to do so. The idea being to give US companies an exit when caught between complying with conflicting legal obligations.

At the time, privacy advocates were unhappy with the Safe Harbour decision, accusing EU negotiators of folding in the face of US demands. Several reviews of the agreement, including this one by a group of internationally renowned scholars, in the summer of 2007, have noted that the Safe Harbour scheme does not meet the requirements of the 1995 data protection directive or EU privacy standards. Documentary evidence, released to journalists by NSA whistleblower Edward Snowden in 2013, on the mass surveillance practices of the US and UK governments, have given weight to those conclusions.

The CJEU get to the Snowden revelations and the EU's response to these in paragraph 11 to 25 of the Schrems decision. In a kind of an 'ooops, oh dear, those nice US Safe Harbour compliant companies are doing things they shouldn't be with EU data; but let's not upset them because it's the government's fault' realisation, the Commission issued Communication COM(2013) 846 final and Communication COM(2013) 847 final; noting US mass surveillance (though they didn't call it that) "raises serious questions".

As our US cousins might say, you're darn tootin' it raises serious questions.

Paragraph's 26 to 36 deal with the Schems complaint about Facebook to the Irish Data Protection Commissioner and the Irish High Court.

Schrems asserted that Facebook's data transfers to the US undermined his fundamental rights to privacy and the protection of his personal data, guaranteed by articles 7 and 8 the Charter of Fundamental Rights of the European Union.

The Irish Data Protection Commissioner said not my job guv, get lost but even if it was, there was no specific evidence that the NSA had been playing with Mr Schrems's data.

Judge Hogan in the Irish High Court took a different view. Whilst accepting that electronic surveillance and interception "serve necessary and indispensable objectives in the public interest... the revelations made by Edward Snowden had demonstrated a ‘significant over-reach’ on the part of the NSA and other federal agencies." [para 30 Schrems] Judge Hogan also noted that EU citizens have no effective right to be heard in relation to the "indiscriminate surveillance and interception" carried out on them on a large scale by US federal agencies like the FBI and NSA. Protections for privacy, fundamental rights and freedoms guaranteed by the Irish Constitution were essentially being undermined by indiscriminate and disproportionate mass surveillance by US authorities. On the basis of Irish law alone, the Irish Data Protection Commissioner was wrong to reject Mr Schrems complaint.

Judge Hogan's view, that then brings the Commission's Safe Harbour decision of 2000 into play. Does that decision, certifying the US as a safe place for EU personal data, bind member states, obliging them to accept that certification; or can a data protection authority of a Member State, independently examine the claim of a person concerning a breach of their rights by a third country, when the law and practices in the third country do not ensure an adequate level of protection? Additionally, given what we know from Snowden, Judge Hogan believes the Safe Harbour decision itself to be invalid - as the fundamental right to privacy would be rendered meaningless if "State authorities were authorised to access electronic communications on a casual and generalised basis without any objective justification based on considerations of national security or the prevention of crime that are specific to the individual concerned and without those practices being accompanied by appropriate and verifiable safeguards."

The Court's deliberations play out in paragraphs 37 to 107.

The fundamental rights to privacy and data protection have been affirmed and re-affirmed in the Court time and again (Österreichischer Rundfunk and Others, Google Spain and Google, Ryneš, Rijkeboer, Digital Rights Ireland and Others). The independence of national supervisory authorities is an important element in protecting those rights in practice. They are obliged, however, to balance those rights with the interests of those requiring free movement of data and have no power relating to the processing of data, once it is transferred to another country. They do have an obligation, under articles 25, 26 and 28 of the 1995 directive, to monitor the transfer of data to a third country and ensure it complies with EU standards. Transfers may only be effected where the country the data is being sent to offers an "adequate level of protection".

Member states or the Commission may assess and determine whether protections offered by a third country are adequate. When the Commission makes a decision that a third country provides adequate protections it is binding on member states, until it is declared invalid by the CJEU. But that Commission decision cannot prevent EU citizens from pursuing a claim through the national supervisory authorities and, if necessary, national courts, if they have reason to be concerned that their fundamental rights are being undermined by the transfer to and processing of their personal data in a third country. If the national courts consider the complaint well founded, as did Judge Hogan in the Schrems case, they must refer it to the CJEU.

Bottom line - even if the Commission white-lists a country like the US, it does not prevent national data protection authorities investigating and national courts hearing an individual's complaint. And if an individual, like Mr Schrems, has a legitimate complaint, then it may be referred to the CJEU and the Commission's decision approving the US as a privacy respecting jurisdiction, may itself be reviewed [exclusively] by the Court of Justice.

"66 Having regard to the foregoing considerations, the answer to the questions referred is that Article 25(6) of Directive 95/46, read in the light of Articles 7, 8 and 47 of the Charter, must be interpreted as meaning that a decision adopted pursuant to that provision, such as Decision 2000/520, by which the Commission finds that a third country ensures an adequate level of protection, does not prevent a supervisory authority of a Member State, within the meaning of Article 28 of that directive, from examining the claim of a person concerning the protection of his rights and freedoms in regard to the processing of personal data relating to him which has been transferred from a Member State to that third country when that person contends that the law and practices in force in the third country do not ensure an adequate level of protection."

Paragraphs 67 to 106 review the validity of the Commission's Safe Harbour decision and constitute another CJEU warning over US and UK mass surveillance practices and the tepid European Commission response to these, following in the tradition of the Google Spain and Digital Rights Ireland cases from 2014.

Short version: the Commission failed totally, in its obligation to ensure that the laws and international obligations of the US actively respected the privacy rights of EU citizens, when approving the US as a trusted data protection nation, in their Safe Harbour decision of 2000. US organisations were permitted approval under a Safe Harbour self certification scheme which had no effective US public authority or legislative oversight (the US Federal Trade Commission's oversight being restricted to commercial disputes relating to unfair or deceptive practices in or affecting commerce and not the legality of interference with fundamental rights) and no remedies for individuals concerned about the potential abuse or misuse of their personal data. Not only did it fail, the Commission didn't even bother to check but eventually did get round to admitting, once the Snowden revelations emerged, that there might be "serious questions" over the Safe Harbour agreement.

Additionally the Commission, in the Safe Harbour decision, exceeded its authority in attempting to nullify national data protection authorities' powers to enable individuals to raise concerns about the processing of data in Commission approved third countries like the US.

86 ... Decision 2000/520 lays down that ‘national security, public interest, or law enforcement requirements’ have primacy over the safe harbour principles, primacy pursuant to which self-certified United States organisations receiving personal data from the European Union are bound to disregard those principles without limitation where they conflict with those requirements and therefore prove incompatible with them. ...

88 In addition, Decision 2000/520 does not contain any finding regarding the existence, in the United States, of rules adopted by the State intended to limit any interference with the fundamental rights of the persons whose data is transferred from the European Union to the United States, interference which the State entities of that country would be authorised to engage in when they pursue legitimate objectives, such as national security.

89 Nor does Decision 2000/520 refer to the existence of effective legal protection against interference of that kind...

92 Furthermore and above all, protection of the fundamental right to respect for private life at EU level requires derogations and limitations in relation to the protection of personal data to apply only in so far as is strictly necessary (judgment in Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 52 and the case-law cited).

93 Legislation is not limited to what is strictly necessary where it authorises, on a generalised basis, storage of all the personal data of all the persons whose data has been transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down by which to determine the limits of the access of the public authorities to the data, and of its subsequent use, for purposes which are specific, strictly restricted and capable of justifying the interference which both access to that data and its use entail ...

94 In particular, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter (see, to this effect, judgment in Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 39).

95 Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter...

96 As has been found in particular in paragraphs 71, 73 and 74 of the present judgment, in order for the Commission to adopt a decision pursuant to Article 25(6) of Directive 95/46, it must find, duly stating reasons, that the third country concerned in fact ensures, by reason of its domestic law or its international commitments, a level of protection of fundamental rights essentially equivalent to that guaranteed in the EU legal order, a level that is apparent in particular from the preceding paragraphs of the present judgment.

97 However, the Commission did not state, in Decision 2000/520, that the United States in fact ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments. 98 Consequently, without there being any need to examine the content of the safe harbour principles, it is to be concluded that Article 1 of Decision 2000/520 fails to comply with the requirements laid down in Article 25(6) of Directive 95/46, read in the light of the Charter, and that it is accordingly invalid... 

99      ... national supervisory authorities must be able to examine, with complete independence, any claim concerning the protection of a person’s rights and freedoms in regard to the processing of personal data relating to him. That is in particular the case where, in bringing such a claim, that person raises questions regarding the compatibility of a Commission decision adopted pursuant to Article 25(6) of that directive with the protection of the privacy and of the fundamental rights and freedoms of individuals...  

102 The first subparagraph of Article 3(1) of Decision 2000/520 must ... be understood as denying the national supervisory authorities the powers which they derive from Article 28 of Directive 95/46, where a person, in bringing a claim under that provision, puts forward matters that may call into question whether a Commission decision that has found, on the basis of Article 25(6) of the directive, that a third country ensures an adequate level of protection is compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals.

103 The implementing power granted by the EU legislature to the Commission in Article 25(6) of Directive 95/46 does not confer upon it competence to restrict the national supervisory authorities’ powers referred to in the previous paragraph of the present judgment.

104 That being so, it must be held that, in adopting Article 3 of Decision 2000/520, the Commission exceeded the power which is conferred upon it in Article 25(6) of Directive 95/46, read in the light of the Charter, and that Article 3 of the decision is therefore invalid.

105 As Articles 1 and 3 of Decision 2000/520 are inseparable from Articles 2 and 4 of that decision and the annexes thereto, their invalidity affects the validity of the decision in its entirety. 106 Having regard to all the foregoing considerations, it is to be concluded that Decision 2000/520 is invalid."

The Court concludes that the Safe Harbour Decision 2000/520 is invalid.

I would just repeat paragraph 93 for emphasis: "Legislation is not limited to what is strictly necessary where it authorises, on a generalised basis, storage of all the personal data of all the persons whose data has been transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down by which to determine the limits of the access of the public authorities to the data, and of its subsequent use, for purposes which are specific, strictly restricted and capable of justifying the interference which both access to that data and its use entail"

So, in summary, national data protection authorities and national courts can review claims of abuse of personal data by third countries and the Safe Harbour EU-US agreement, Decision 2000/520 is invalid.

"On those grounds, the Court (Grand Chamber) hereby rules: 1. Article 25(6) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a decision adopted pursuant to that provision, such as Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, by which the European Commission finds that a third country ensures an adequate level of protection, does not prevent a supervisory authority of a Member State, within the meaning of Article 28 of that directive as amended, from examining the claim of a person concerning the protection of his rights and freedoms in regard to the processing of personal data relating to him which has been transferred from a Member State to that third country when that person contends that the law and practices in force in the third country do not ensure an adequate level of protection.

2. Decision 2000/520 is invalid."

Update: Peter Swire who was one of the US expert negotiators when the Safe Harbour provisions were agreed, yesterday criticised CJEU AG's opinion in the case, as suffering from particular inaccuracies concerning the law and practice of U.S. foreign intelligence law, notably the PRISM program. He particularly emphasises changes to US law since the original Snowden revelations notes with approval the PRISM program is governed by Section 702 of the law enacted in 2008 to amend the Foreign Intelligence Surveillance Act. I suspect, given s702's 'guilty of being a foreigner' provisions Caspar Bowden would have had a few words to say on the subject.

The full court don't get into the intricacies of PRISM but it does hint strongly that Kafkaesque mass surveillance, without remedy available to those affected, undermines the rule of law.

Update 2: Daniel Solove does a really accessible analysis of the Court's decision and its possible implications. I suspect he over-estimates the likely impact of the coming revisions to EU data protection laws, given the giant privacy avoidance loopholes built into the draft general data protection regulations. But it is still essential reading.

Update 3: I also highly recommend Andres Guadamuz's analysis of the case.

Update 4: Some typos plus one error relating to FTC corrected. There follow links to EU Commission/Parliament reviews of Safe Harbour in 2002, 2004 and the post Snowden reviews of 2013 COM(2013) 846 final Rebuilding Trust in EU-US Data Flows and COM(2013) 847 final on the Functioning of the Safe Harbour from the Perspective of EU Citizens and Companies Established in the EU

Irish High Court refers Schrems Facebook privacy case to ECJ

The Irish High Court has this morning referred Max Schrems Facebook privacy case to the European Court of Justice. Judge Hogan (at p33) refers the following specific questions -

Whether in the course of determining a complaint which has been made to an independent office holder who has been vested by statute with the functions of administering and enforcing data protection legislation that personal data is being transferred to another third country (in this case, the United States of America) the laws and practices of which, it is claimed, do not contain adequate protections for the data subject, that office holder absolutely [sic] bound by the Community finding to the contrary contained in the Commission Decision of 26 July 2000 (2000/520/EC) having regard to Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union (2000/C-364/01), the provisions of Article 25(6) of Directive 95/46/EC notwithstanding? Or, alternatively, may the office holder conduct his or her own investigation of the matter in the light of factual developments in the meantime since that Commission Decision was first published?

Judge Hogan's summary of overall conclusions runs from paragraphs 74 to 84.

"74... Mr Schrems' complaints are not "frivolous or vexatious"...

 75... Mr Schrems enjoys locus standi to bring this complaint and to bring these proceedings. It is irrelevant that Mr Schrems cannot show his own personal data was accessed in this fashion by the NSA, since what matters is the essential inviolability of the personal data itself. The essence of that right would be compromised if the data subject had reason to believe that it could be routinely accessed by security authorities on a mass and undifferentiated basis.

76... the evidence suggests that personal data of data subjects is routinely accessed on a mass and undifferentiated basis by the US security authorities.

77... as far as Irish law is concerned, s. 11(1)(a) of the 1988 Act forbids the transfer of personal data to a third country unless it is clear that that jurisdiction sufficiently respects and protects the privacy and fundamental freedoms of the data subjects. In this particular context of national law, the standards in question are contained in the Constitution.

78... the chief constitutional protections are those relating to personal privacy and the inviolability of the dwelling. The general protection for privacy, person and security which is embraced by the "inviolability"  of the dwelling in Article 40.5 of the Constitution would be entirely compromised by the mass and undifferentiated surveillance by State authorities of conversations and communications which take place within the home. For such interception of communications to be constitutionally valid, it would, accordingly, be necessary to demonstrate that this interception and surveillance of individuals or groups was objectively justified in the interests of suppression of crime and national security and, further, that any such interception was attended by appropriate and verifiable safeguards."

Just an aside on that last sentence in that paragraph - it could be interpreted as reading that surveillance would be justified "in the interests of suppression of ... national security". Let's just assume that's not what the good judge was attempting to convey.

"79... if the matter were to be measured solely by Irish law and Irish constitutional standards, then a serious issue would arise which the Commissioner would then have been required to investigate as to whether US law and practice in relation to data privacy, interception and surveillance matched those data standards."

(The "Commissioner" referred to is the Irish Data Protection Commissioner).

In paragraph 80 Judge Hogan explains, however, that Irish standards are effectively bypassed by the data protection directive and the European Commission's Safe Harbour agreement with the US; and the EC 2000/520/EC decision essentially declaring the US privacy-safe territory for EU personal data.

"81... it follows, therefore, that if [my emphasis] the Commissioner cannot look beyond the Commissions Safe Harbour decision of July 2000, then it is clear that the present application for judicial review must fail... because the Commission has already decided that the US provides an adequate level of data protection...

82... in holding that the complaint was unsustainable in law, the... Commissioner has ... demonstrated scrupulous steadfastness to the letter of the 1995 Directive and the 2000 Decision.

83... the applicant's objection is, in reality, to the terms of the Safe Harbour Regime itself rather than to the manner in which the Commissioner has applied the Safe Harbour Regime...

84... the critical issue which arises is whether the proper interpretation of the 1995 Directive and the 200 Commission decision should be re-evaluated in light of the subsequent entry into force of Article 8 of the Charter and whether, as a consequence, the Commissioner can look beyond or otherwise disregard this Community finding. It is for these reasons accordingly that I have decided to refer this question (and other linked questions) to the Court of Justice..."

My brief take -

The Irish High Court's decision amounts to a critique of mass and undifferentiated surveillance by state authorities, particularly the US. However, the much maligned Irish Data Protection Commissioner, Billy Hawkes, gets a pat on the back in rejecting Mr Schrems complaints, for "scrupulous steadfastness to the letter" of the data protection directive of 1995 and the EC Safe Harbour decision on the US in 2000. It appears, however, to constitute significant progress for Mr Schrems Europe v Facebook campaign and a small step in the right direction (nearly said "directive" there) for privacy in digital communications.

Note: Post above amended from earlier following access to full decision. 

Update: One other thought - Judge Hogan seems to think the Commissioner is boxed in by the data protection directive and the 2000 European Commission decision on Safe Harbour; but from my limited dealings with the Irish Data Protection Commissioner's office they seem to be more boxed in by a lack of resources and by their agreement with Facebook.