US law allows ‘extraordinary access’ to private data, court told

US surveillance law is “extremely permissive” and allows “extraordinary access” to the private data of non-US citizens worldwide, a US attorney has told the Commercial Court.

Ashley Gorski, who focuses on US surveillance in her work with the American Civil Liberties Union, said the US government claims "broad authority" to acquire communications and data of non-Americans located abroad.

The vast majority of those subject to surveillance have “no viable avenue” to get “meaningful “ redress for violation of their rights resulting from surveillance, she said. Surveillance affects ordinary citizens with no connection to terrorism.

Under the Foreign Intelligence Surveillance Act 1978 (Fisa) and a presidential Executive Order 12333, the US government claims “extraordinary access” to the private communications and data of both US and non-US persons around the world, Ms Gorski said.

Safeguards in Fisa, put in place in 1978 by the US congress with respect to surveillance directed at non-US citizens, have now been eliminated, she said.

Ms Gorski provided a detailed report to the court and also gave evidence on Friday in the continuing action by the office of the Data Protection Commissioner concerning transfers to the US of data of EU citizens via transatlantic channels used by Facebook and other companies.

European ruling

The commissioner, Helen Dixon, wants Ms Justice Caroline Costello to ask the Court of Justice of the EU to rule on the validity of European Commission decisions that permit use of transatlantic data transfer channels known as standard contractual clauses.

Ms Dixon says she needs a European determination before finalising her investigation into a June 2013 complaint by an Austrian lawyer, Max Schrems, about the transfer of his personal data by Facebook Ireland – because Facebook's European headquarters is in Ireland – to its US parent Facebook Inc.

In a draft finding last May, the commissioner said Mr Schrems had “well-founded” objections to the data transfer based on her provisional view that US safeguards and remedies concerning the data privacy rights of EU citizens are inadequate.

While her case is against Facebook and Mr Schrems, no orders are sought against them and the purpose of the proceedings is to get a referral to the European court. The US government is among several concerned parties involved as amici curiae, assistants to the court on legal issues.

On Friday, Ms Gorski outlined to James Doherty SC, for Mr Schrems, the main findings of her report, provided to the court as an expert witness for Mr Schrems.

Civil liberties

Cross-examined by Paul Gallagher SC, for Facebook, Ms Gorski agreed she is an advocate for civil liberties with no background in actual practice of US surveillance programmes. She disagreed that her opinion of the programmes was “speculative”.

From a range of sources accessed by her, including disclosures by former NSA contractor Edward Snowden, various reports, books, trusted media reports and her own work, Ms Gorski considered she could make reasonable inferences about the operation of those programmes, including Prism and Upstream, she said.

She disagreed that it was unfair to describe the US foreign intelligence security court as a “secret” court. While agreeing some significant decisions of that court are now made public, she said its hearings continue to be held in secret.

Ms Gorski disagreed that her description of section 702 of Fisa did not identify what Mr Gallagher said were “multiple constraints” in that section. “I would need to understand what specific constraints you are referring to,” she said.

She agreed that section 702 is scheduled for review by the US congress later this year, and the ACLU is publicly advocating against its renewal.

She agreed that it is necessary for the US to protect itself against hostile attack and also agreed she is not aware of any other country that makes publicly available the basis for its foreign intelligence gathering,

Ms Gorski said her concern is about the broad definition of “foreign intelligence” in the legislation and the absence of judicial remedies for breach of rights, she said.

The case resumes on Wednesday.