What is this about?
Last Friday 21 October at the New York State Bar International Section seasonal meeting held in Paris, Jonathan Armstrong from Cordery interviewed the high-profile privacy advocate and litigant Max Schrems. It will be recalled that Max brought the case that ended up before the European Court of Justice that brought down the EU-US Safe Harbor scheme just over a year ago. This briefing summarises the highlights of a fruitful and lively exchange between Jonathan and Max.
What did Schrems say?
Max was open and forthright about many things and the following comments give some of the flavour of Max the person and his views:
- Privacy – “Privacy is dead only if we don’t enforce it” and “I don’t accept that anyone can read my emails” were clear statements of Max’s motivation and driving-force as a privacy advocate. In response to a question about the British Prime Minster Theresa May’s statement that surveillance is a price we pay in today’s world he said that “there is a fine line between privacy and silence and we must get the balance right”. As regards one of privacy’s key principles, consent, he said that “there is no real consent” and “people are not informed – it doesn’t protect people in a meaningful way”;
- Mass surveillance – “Mass surveillance is not adequate protection full stop” and “the only solution is that if half of Silicon Valley wants to do business in the world US surveillance law must change”. He also thinks that post-Brexit the UK may also have issues with mass surveillance in the same way the US has had unless the rights of individuals to challenge surveillance exist. He said that the recent Microsoft case “was a good case”, but it was a case about an individual email and his case is different – the big issue for him remains US mass surveillance. However, in response to a comment that France has expanded its surveillance (i.e. the US’s surveillance programme is not the only issue) he said that “This is not a US-EU case, it is a surveillance case”. For him this is very much an issue of surveillance versus EU fundamental rights and he hopes that the issues he’s been concerned with will “spill over” into the case-law of the European Court of Human Rights and he referred in particular to a case concerning Hungarian surveillance legislation (decided earlier this year);
- The 2016 European Court case – He feels that the fact that the European Court of Justice decided the last case quickly (on their terms) and that the Presiding Judge wanted to do the judgment before he retired shows how engaged the court is on privacy cases; according to him one of the judges also went against the others in the case. He said that Edward Snowden had tweeted that it was a great case, which Max said he liked;
- The ongoing case concerning international data transfers under Model Clauses (to be referred to the European Court) – He remarked that in his view a random choice of people have been allowed to become amicus curiae in the case. He thinks the US Government will have issues now that they are amicus curiae because, according to him, for the first time mass surveillance will be an issue in court, an issue that he feels hasn’t really been discussed to date. As regards international data transfers under Binding Corporate Rules he consider them to be a “very awkward system” and “it is the same problem no matter what bandages you use”;
- Privacy Shield – “Privacy Shield is Safe Harbor with flowers on it – it will probably be killed by the European Court” was his bold prediction!;
- The future regulation of big data – In his view this will need to also look at anti-trust and fair trading/transparency;
- Facebook – He said in effect that Facebook was not a target as such as he just wanted to look into one company and it was “not that Facebook is worse than anyone else – it just happened like that”. In fact he said that at an event with Facebook he was actually quite friendly towards a Facebook representative and in fact it was US students who were more negative towards Facebook. Upon his request for information from Facebook about him he said that they provided him with 1,200 pages of documents, 300 of which were deleted. He did however express his concern about hate-speech and refugees that people are making on Facebook who he claimed does nothing about it. He did also remark “Why is Facebook looking at where you’re walking around?”. He nevertheless still uses Facebook as it is a good way to contact people in other countries (“it is like the Yellow Pages”) – he also stated that he uses Google less;
- Privacy awakening – He revealed that his first awareness of privacy issues occurred during a student exchange programme when he was in a small town in Florida where there was a lot of CCTV and he was somewhat surprised that such a small place needed so much surveillance;
- Belgian & Hamburg cases – In his view the Belgian and Hamburg cases that are on-going will go nowhere and these are basically “footnotes in the overall battle”;
- Big business/Silicon Valley – He expressed particular concern about corporates and how, in his view, they don’t follow the law and don’t pay taxes stating that he pays more tax than Starbucks – getting corporations to be compliant is a big issue for him. His concern is about corporations “escaping jurisdiction” and he commented that “Facebook could change being Irish overnight”. For him there are also what he termed “fair competition” issues, especially concerning Silicon Valley which in his view “dump on the market and then get rid of the rest and close the market”. For him Silicon Valley is doing what was done by the oil companies and others at the turn of the twentieth-century in terms of becoming monopolies – instead corporations should “serve the people and not the shareholders” and we must “protect the little guys against the bigger guy/companies”. He is also concerned by new model operators like Uber and the dominance they have and gave the example of a recent trip he took to the US and where in terms of getting around he had in fact little option than get a lift from people he met or Uber since taxis were now hard to find where he was;
- Lawyers & the Law – He said “I’d rather die than be a lawyer” and he gets bored of litigation! He is in effect curious and likes to understand how things work – once he’s understood he gets bored; and,
- The Future – He wants to set up a European Privacy NGO about commercial privacy to ideally be staffed by two or three lawyers and some technicians to look at future regulation and not be just focused on privacy. He is looking for funding for this – in his view it should be Government funded.
The bee in his bonnet is his concern with fundamental rights and mass surveillance and he showed no signs of letting his guard drop on this, so we can expect more interesting developments from him – watch this space! Last but not least, Max was both very open and generous with his time and deserves a big thank-you for this.
For more information please contact André Bywater who is a lawyer with Cordery in London where his focus is on compliance issues.
André Bywater, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH
Office: +44 (0)207 075 1785
Interview photographs courtesy of the NYSBA and Andre R. Jaglom.