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The ECJ’s Fatal Imbalance Its cavalier treatment of national security issues poses serious risk to public safety and sound commercial practices

On 6 October 2015, the European Court of Justice responded to a claim by the Austrian Maximillian Schrems, who feared for the security of his Facebook information. In response to that claim, the European Court of Justice held that 15-year-old ‘safe harbour’ provisions governing relations between the United States and the European Union were ‘invalid’ under the EU’s standards because they did not provide ‘adequate protection’ for the EU data stored and used in the United States. A little over a month later, on 13November, ISIS terrorists stormed several key locations in Paris and slaughtered some 130 innocent people, injuring hundreds more. It was widely understood that the ISIS operatives in Paris were able to communicate under the radar, often with encrypted devices, so that the attack came as a complete surprise to public authorities. The obvious question to ask about this situation is whether the two events are in any meaningful sense related to each other. In one sense the answer should be put into the negative. The European Court of Justice decision was only about the transmission of key datasets into the US. It was not, on its face, about how the US should conduct its internal operations. But that purported separation turns out to be artificial at best. The European Court of Justice decision gave no grace period for implementing the reforms, and it concluded, without any examination of how