US government seeks to join Privacy Shield data privacy case

US joins challenge by Digital Rights Ireland on privacy of data sent from Europe to America

The US government has applied to be an intervening party in a challenge by Irish privacy campaign group Digital Rights Ireland against the Privacy Shield transatlantic data transfer pact.

The framework was finalised by the EU and the US last July after months of negotiations to replace the Safe Harbour arrangement which previously underpinned transfers of personal data.

Safe Harbour was struck down by the Court of Justice of the European Union in October 2015 following a challenge in the Irish courts by Austrian campaigner Max Schrems. He had concerns about US surveillance of citizens.

DRI filed a legal challenge to Privacy Shield last October, three months after it was unveiled.


The framework makes it easier for businesses moving personal data across the Atlantic – from human resources information to people’s browsing histories to hotel bookings – to do so without falling foul of tough EU data transferral rules.

More joining the case

DRI wants to take the challenge before the second-highest EU court, arguing that Privacy Shield does not adequately protect the privacy of EU citizens.

The US government applied this week to be an intervening party in the case, supporting the European Commission position on Privacy Shield. Other countries that have applied to join the case include France, the UK and the Netherlands.

Microsoft and the Business Software Alliance, which represents the global software industry, have separately applied to join the action.

No proceedings will be heard, however, until a separate application by the European Commission on whether DRI has standing to take the case is heard.

In October, DRI appealed the validity of Privacy Shield directly to the Court of Justice’s General Court.

In questioning Privacy Shield’s adequacy, it says its provisions are not actually fixed in US law. The privacy group will also argue that the agreement neither adequately addresses the court’s specific objections to Safe Harbour, nor protects citizens’ rights provided for under the EU Charter of Fundamental Rights and by the general principles of EU law.

In addition, the US Foreign Intelligence Surveillance Act continues to permit public authorities to have secret access on a generalised basis to the content of electronic communications, the case will argue.