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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Regulation of Telecommunication

Yasuo Hasebe

Subject(s):
Data protection — Freedom of expression — Freedom of the press — Right to access to information — Telecommunication

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Telecommunication is defined by the International Telecommunication Union (ITU) as ‘any transmission, emission or reception of signs, signals, writing, images and sounds, or intelligence of any nature by wire, radio, optical, or other electromagnetic systems’ (Annex to the ITU Constitution of 2011, 1012; International Telecommunication Regulation (ITR) of 1988, Art. 2.1). In constitutional law, telecommunication has been analysed from the aspects of freedom of expression and secrecy of communication, primarily in the fields of broadcasting, the Internet, and personal communications. Since the advent of the Internet, it has become increasingly difficult to neatly divide the sphere of telecommunication into public communication and personal communication, and to examine the former from the viewpoint of freedom of expression and the latter from that of confidentiality. The conversion and fusion of various media significantly affect legal systems and doctrines in this whole area (see also regulation of the media).

2.  Reading through constitutional codes across the world reveals many clauses that specifically stipulate on telecommunication. Art. 5 of the Basic Law of Germany provides that ‘freedom of the press and freedom of reporting by means of broadcasts… shall be guaranteed’ (freedom of the press), and its Art. 10 provides that ‘the privacy of correspondence, posts and telecommunications shall be inviolable’ (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger)). Art. 40 of the Constitution of China of 1982 provides that ‘freedom and privacy of communication of citizens of the Popular Republic of China shall be legally protected’ (Constitution of the People’s Republic of China: 4 December 1982 (China)). Art. 20 of the Federal Republic of Russia provides that ‘freedom of mass media shall be guaranteed’ (Constitution of the Russian Federation: 12 December 1993 (Russia)).

3.  However, if broadcasting or telecommunication is not specifically referred to in the texts of a constitution, relevant freedoms and liberties may be guaranteed under more general constitutional clauses (for example, the freedom of speech clause of the Constitution of the United States). On the other hand, even when constitutional texts specifically mention these freedoms and liberties, it is a different question to what extent the texts describe a functioning constitution in practice. Such clauses may merely express aspirations of the people in a given country. Worse still, they may merely represent window dressing exercises by the government to the society. For example, in China after 1949, all forms of media—newspapers, magazines, books, radio and television—are all run by entities of public nature, the leadership of which is directly appointed and removed by the government and the government can easily turn any media outlet upside down by simply replacing its major leaders (Zhang 229–30).

4.  This article focuses on the working constitutions of, among others, the United States and European countries, because of their relevance for other jurisdictions. It does not survey every corner of the vast area of telecommunication of these countries. Instead, it focuses on several prominent topics.

B.  Broadcasting: Rationales for its Regulation

5.  Broadcasting service is defined by the ITU as ‘radiocommunication service in which the transmissions are intended for direct reception by the general public’ (Annex to the ITU Constitution of 2011, 1010). Radiocommunication is telecommunication by means of radio waves (Annex to the ITU Constitution of 2011, 1009). A broadcasting service may include sound transmissions, television (TV) transmissions, or other types of transmissions.

1.  The American Doctrine

6.  In many countries, broadcasting is extensively regulated compared to the print media. In particular, programme content is regulated in order to avoid political partiality and/or to realize a wide and diversified range of programmes. Concentration of ownership of broadcasting services is regulated not only for the protection of consumer interests (consumer protection), but also for the promotion of democratic values. This raises the question as to whether such extensive regulation can be justified with regard to the constitutional guarantee of freedom of speech. In a number of Western countries broadcasting regulation has been justified on the basis of two rationales: first, that broadcasting has been dependent upon the radio spectrum, a scarce resource; and second, that broadcasting has exerted a particularly strong social influence. A typical case is the American doctrine elaborated through judicial precedents.

7.  In order to avoid harmful interference, radio waves should be divided into a number of units of wave lengths (frequencies), and the right to the exclusive use of each unit should be allotted to a specified licensee. Thus, as the rationale goes, the number of units of frequencies to be used for broadcasting becomes scarce when compared to the number of people wanting to enter the broadcasting business. Therefore, to whom the license to use such a scarce resource is to be granted should be considered from the viewpoint of the public interest, and broadcast content should also be regulated from the same viewpoint.

8.  In Red Lion Broadcasting Co v FCC (1969) (US), which confirmed the constitutionality of the personal attack rule (47 CFR s 73 1920), Justice White states for the court the following:

Without government control, the medium would be little use because of the cacophony of competing voices, none of which could be clearly and predictably heard. Consequently, the Federal Radio Commission (later, the Federal Communications Commission (FCC)) was established to allocate frequencies among competing applicants in a manner responsive to the public ‘convenience, interest, or necessity’… Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish … It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount (author’s emphasis) (395 U.S. 367, 376-377, 388).

9.  The second rationale focuses on the unique influence of broadcasting. In contrast to print media, TV and radio broadcasts can directly enter private households to convey information in such powerful forms as moving images and sounds. Moreover, because viewers and listeners can watch or listen to broadcasts without positive effort on their part, TV and radio broadcasts virtually hold them in the position of a captive audience. Chief Justice Burger refers to the ‘captive nature’ of the broadcast audience in his court opinion in CBS v Democratic National Committee. As the rationale goes, because TV and radio broadcasts can reach their broadcast area instantaneously and simultaneously, their social impact is amplified. Additionally, because ‘broadcasting is uniquely accessible to children, even those too young to read’, regulations to eliminate programmes that are indecent, even if not obscene, are also justified (FCC v Pacifica Foundations).

10.  However, contrary opinion has been mounting in recent years regarding the above referenced rationales for regulating broadcasting. First, recent technological developments have increased the range and usability of frequencies available for broadcasting. Moreover, the scarcity of the broadcasting spectrum has been substantially mitigated by the emergence of various new media, such as satellite and cable TV. The social influence of broadcasting has also become more diffuse with the diversification of media. Thus, even if the conventional rationales for regulation remain valid, it is no longer appropriate to regulate all types of broadcasting uniformly. In 1987, the FCC overturned decades of practice to hold that the Fairness Doctrine contravened the First Amendment and thereby disserves the public interest (Syracuse Peace Council Memorandum Opinion and Order (1987) (US)). The doctrine demanded that broadcasters (a) devote a reasonable amount of broadcast time to the discussion of controversial issues, and (b) do so fairly—that is, afford reasonable opportunity for the presentation of opposing viewpoints. In overturning the doctrine, the FCC relied upon the growth of the electronic media which, in its view, removed the scarcity rationale of Red Lion.

11.  Furthermore, certain arguments have been quite influential in casting doubt on the very validity of regulatory rationales based on the scarcity of spectrum or on unique social influences (Bollinger (1976); Fowler and Brenner). For example, from the scarcity rationale, one cannot directly conclude that the selection of broadcasters should be made by some public authority; broadcasters might alternatively be selected through a call for tenders, or by referendum. In Great Britain, under the Broadcasting Act of 1990 broadcasting licences were typically awarded to the highest bidders.

12.  Moreover, it is questionable whether the scarcity of radio spectrum actually justifies treating broadcasts and newspapers differently. Because the newspaper industry is one in which the average cost diminishes as scale increases, and because demand in newspaper publishing has gradually decreased, conditions favouring consolidation are apparent. Thus, there will not necessarily be fewer broadcasting stations than newspaper companies. Finally, the influence of broadcasting has never been proven to be unique or more pervasive than print media.

2.  Bollinger’s Theory of Partial Regulation of the Mass Media

13.  Faced with this question, constitutional theory can choose one of two paths: treat broadcasting equally with print media, or attempt to find a new rationale for broadcasting regulation. Lee Bollinger’s theory of partial regulation of mass media treads upon the latter more challenging path (Bollinger (1976); Bollinger (1991)).

14.  According to Bollinger, the traditional rationales for broadcast regulation are invalid, because broadcasts and newspapers cannot be distinguished from one another either in terms of scarcity or social impact. However, Bollinger argues that in a contemporary society, in which a small number of mass media corporations monopolize the means of conveying information to the public, it is nevertheless appropriate to impose regulations only on broadcasting. By this partial regulation, Bollinger argues, multitudes of opinions are afforded access to broadcasting, while the free print media is left to convey opinions that may not be disseminated by regulated broadcasting, as well as to criticize the excessive government regulation of broadcasting. Partial regulation would furthermore preserve the unregulated press as a benchmark against which every regulatory imposition would need to be carefully scrutinized and justified. This approach would thus encourage mass media as a whole to deliver diversified information to society, while at the same time limiting governmental regulation (Bollinger (1991) 120; Barendt (2005) 448; Hasebe 5–6).

15.  One implication of Bollinger’s theory is that the dividing line between regulated broadcasting and unregulated print media is artificial. Where this line should be drawn is to be determined in view of how to promote the public interest, including the breadth and diversity of the range of information, ease of access to information essential for daily life (right to access to information), independence of the mass media from the government, etc.; although, once drawn, the line should not be moved carelessly, because it becomes the focus of expectations of media companies as well as ordinary citizens. If the time comes when information essential for daily life is disseminated primarily through a few Internet sites, then regulatory measures to diversify viewpoints reflected in the information provided by such sites may become necessary. However, Eric Barendt points out that the Internet has not yet replaced the print and broadcasting media. According to him, its role is for the most part supplementary to that of the traditional media—that is, it is used by individuals to communicate their views to other individuals, rather than to a mass audience (Barendt (2012) 907).

3.  The German Doctrine

16.  The German doctrine on broadcast regulation has also exerted significant influence on other countries. Precedents of the German Constitutional Court have adopted a rationale for broadcast regulation not significantly different from the American one. In the First Broadcasting Decision of 1961, the Court upheld the challenge against establishing a national commercial television channel by Adenauer’s Christian Democrat government. The Court stated that, unlike the press, broadcasting media should be regulated because there is a shortage of frequencies and establishing television stations is costly. The Court also stated that the public broadcasting monopoly can be justified, although it is not mandatory under the Basic Law (1. Rundfunkurteil). The ruling suggested that the pluralism of opinions disseminated by public broadcasters might be realized through the internal composition of its supervisory organs, the membership of which should reflect socially significant groups as well as political parties (Humphreys 161–62).

17.  While Art. 5 of the Basic Law has explicitly incorporated the freedom of broadcasting into the German Constitution, the founding fathers of the constitution embraced how the National Socialist regime abused this form of media as the primary propaganda instrument of the fascist state. Thus, the consideration that broadcasting should be so regulated as to contribute to the formation of public opinion (Meinungsbildung) was developed. This concept of contributing to freedom (dienende Freiheit), which is clearly stated in the Third Broadcasting Decision (3. Rundfunkurteil), is consonant with the statement in Red Lion that ‘the right of the viewers and listeners, not the right of the broadcasters… is paramount’. It also supports the necessity of the proper regulation of broadcasting (Humphreys 132–33). In other words, because a broadcaster’s freedom of speech is constitutionally guaranteed in order to realize the public interests of society in general, regulation of this freedom, which would not be justified if applied to individuals, may be justifiably established and exercised. In this regard, the German Constitutional Court has stressed the importance of the role of public broadcasting. In its Sixth Broadcasting Decision (6. Rundfunkurteil) the Court states that it is essential that public broadcasters are able to discharge their fundamental responsibility of providing the community with a wide range of programming (Grundversorgung) (Barendt (1993) 19–24).

C.  The Internet

1.  Overview

18.  In 1969, the Internet started as a research experiment under the US government to develop a computer network that could survive a nuclear attack (for the following, see Benjamin and Speta 529–37 and Rustad 4–15). The definition of the Internet is an interconnected worldwide web network of networks employing the Transmission Control Protocol/Internet Protocol (TCP/IP). It is a distributed, interoperable, packet-switched network. The TCP is the data packeting protocol, whereas IP is the protocol for routine packets. A packet is a basic unit of data formatted for transmission on a packet switching computer network. Each TCP/IP packet is comprised of: (1) a header containing its source and destination, enabling Internet routers to transport the packet; (2) a body, which contains the payload, or application data; and (3) the tail, with its error checking code. Packets may follow different routes to their destination, and the receiving computer reassembles the packets. In order for the packet to arrive, each computer must be given a unique address, a numerical label known as an IP address. The Internet’s major hub or a network access point can be used as a kill switch, which an oppressive regime can use to stifle political opposition.

19.  The constitutional baseline of the Internet seems to be that, contrary to broadcasting, the same constitutional principles to be applied in general are also applicable to expressions on the Internet. In the case of American constitutional review, a content-based regulation on expression on the Internet would only be upheld if it survived strict scrutiny. Thus, legislation criminalizing the sending or displaying of patently offensive messages on the Internet to persons under 18 years old was struck down because it was overly broad and vague (Reno v ACLU (US)). On the other hand, a content neutral regulation with an incidental effect on speech must pass intermediate scrutiny; it must serve a substantial governmental interest, and the incidental restriction on speech must not burden substantially more speech than is necessary to further the interest. However, as to personal communications not intended to be public, such as emails, their secrecy should be guaranteed.

20.  It should be noted that regulation of telecommunication is also accessed at the international level. Special Rapporteur on Freedom of Expression to the UN Human Rights Council, David Kaye, warns that while the rapid growth of the information and communications technology (ICT) sector has led to unprecedented opportunities for access to information and communication, it has triggered new forms of state regulation that threatens the very existence of a free and open Internet. He also observes that the activities of the private sector have an ‘outsized impact’ on the freedom of expression of millions of users, given their role as ‘gatekeepers’ of the global exchange of information and ideas (Special Rapporteur).

2.  Service Providers as Distributers

21.  Questions arise about to what extent providers or search engines should face tort liability regarding expressions created by third parties on the Internet that are defamatory, infringe upon privacy, or are harmful to other legally protected interests (defamation). In the United States, Section 230 of the Communications Decency Act of 1996 (CDA) immunizes providers of interactive computer services from liability arising from content created by third parties. It stipulates as follows: ‘no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider’ (47 USC s 230(c) (US)). Thus, websites and other online defendants are treated as distributers that are not liable for the postings of third parties, absent proof of knowledge or notice of the objectionable materials. After Zeran v America Online (US), the immunity accorded by Section 230 has been understood as encompassing liability as distributers as well.

22.  Section 230(f)(3) defines an ‘information content provider’ as ‘any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service’. This section also authorizes providers and users of interactive computer services to remove or restrict access to inappropriate materials without being subject to defamation liability.

3.  Identifying Speakers

23.  Because many postings on the Internet are anonymous, it is sometimes difficult for victims of tortious postings to identify the content providers of relevant information. However, victims’ interests may be in conflict with Internet service providers’ duty as common carriers, or content providers’ right to communicate anonymously. In the United States, victims apply to courts to serve a subpoena duces tecum directed to Internet service providers to divulge the identities of anonymous speakers. In Anderson v Hale (US), the court applied a three-factor test in order to decide whether to issue a subpoena, examining the relevance of the information sought, the need for the information, and the extent of injury disclosure may cause to associational rights.

24.  In Japan, a legislative statute was enacted in 2001 to resolve these problems. According to the Act Restricting Liabilities of Internet Service Providers (Provider Sekinin Seigen Ho), Internet service providers are not liable for postings on the Internet of third parties, absent proof of knowledge or notice of the objectionable materials (Art. 3). Additionally, persons injured by postings on the Internet can demand Internet service providers divulge the identities of speakers, if the infringement of a legally protected interest is obvious, and if the information about the identity of a speaker is necessary for the injured person to exercise his or her legal rights (Art. 4). The freedom to speak anonymously may be restricted in order to allow victims to exercise their rights to obtain injunctions and to recover damages.

4.  The Right to Be Forgotten?

25.  Information once posted on the Internet will spread globally, remain almost eternally, and can be easily searched. As described above, when its content is tortious, victims may ask courts to order Internet service providers or original speakers to take down the posting. When the content is true but created a long time ago, can the person affected by the information still demand it be taken down? In particular, are search engines that enable people to search information on the Internet required to remove search results that contain out-of-date personal information? These questions exemplify the issue of the so-called ‘right to be forgotten’ (data protection).

26.  In 1998 a Spanish newspaper, La Vanguardia, published two announcements in its printed edition regarding the forced sale of properties arising from social security debts. The announcements later became available on the web. One of the properties described in the announcements belonged to Mario Costeja González, who in February 2010 contacted Google Spain requesting the links to the announcements be removed. González then filed a complaint with the Spanish Data Protection Agency requesting that the newspaper be required to remove the data and that Google Spain be required to remove the links to the data. On 30 July 2010, the director of the agency rejected the complaint against the newspaper but upheld the complaint against Google Spain. Google Spain brought an action appealing the decision before the Audiencia Nacional (National High Court of Spain). The issue concerning EU law was referred to the Court of Justice of the European Union for a preliminary ruling.

27.  In Google Spain v Agencia Española de Protección de Datos, Mario Costeja González, the Court of Justice of the European Union held that, in this case, Art. 7(f) of Directive 95/46 relating to the legitimacy of the processing of personal data requires a ‘balancing of the opposing rights and interests’ of the data subject and the data controller (Google Spain), taking into account the data subject’s rights to data protection and privacy deriving from the Directive. Additionally, the Court stated that the processing of data that is ‘inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose of the processing’ might be incompatible with the Art. 6 of the Directive, even if the content is true and lawfully published by third parties. If this is the case, the information and the links in the list of search results must be erased in compliance with Art. 12(b) and Art. 14(1)(a), in so far as interference with the data subject’s rights is not justified by the preponderant interest of the general public in having access to the information in question.

28.  Following the ruling, Google made public an online form that could be used by EU citizens or European Free Trade Association (EFTA) nationals for demanding the removal of links from its search results if the data linked is ‘inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed’. It should be noted that even if Google deletes links to websites which contain tortious information, the information about the claimant on the websites itself will not be automatically scrubbed and may be searched via other search engines. Because this is a case under the EU Directive on the protection of individuals with regard to the processing of personal data, the ruling does not have any direct relevancy for other jurisdictions. Thus far, Google has refused to apply the legal principle behind the judgment of the EU Court to other parts of the world. Nevertheless, this decision has had immense repercussions globally. For example, Yahoo Japan established its own standards regarding in what contexts links to personal information should be removed, in accordance with recommendations by an expert committee that the company had autonomously set up (see Yahoo! Japan, Expert Committee).

29.  In the United States, as a result of Section 230 of the Communication Decency Act, interactive computer service providers are given immunity from liability as a publisher for content posted by users of the service (47 USC s 230). Therefore, all cases involve removal from the original sources of publication; however, such suits have rarely been successful (Jones 65).

30.  Art. 17 of the newly enacted Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 (General Data Protection Regulation), which comes into force on 25 May 2018, is entitled ‘Right to erasure’ (‘right to be forgotten’). Art. 17 provides that the data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her, without undue delay on stipulated cases, including where the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed. Art. 17 (3) provides that the right to be forgotten does not apply when processing of the data is necessary for: (a) exercising the right of freedom of expression and information; (b) compliance with a legal obligation to which the controller is subject; (c) reasons of public interest in the area of public health; (d) achieving purposes in the public interest, scientific or historical research purposes, or statistical purposes; and (e) the establishment, exercise, or defence of legal claims.

D.  Secrecy (or Confidentiality) of Personal Communication

31.  Telephony and email are the typical media for personal communication. People using telephony or email would expect that privacy of their communication is to be respected. Secrecy of communication guarantees free communication between people, as well as making business transactions smooth. As common carriers, telephone companies and Internet service providers have an obligation to protect the communication secrecy of their users. However, only a ‘reasonable expectation of privacy’ is respected (cf Kats v United States), and what is considered reasonable may change in accordance with the society in which you make your communications or through which countries your email packets pass.

32.  In Smith v Maryland, the US Supreme Court held that the public lacks a reasonable expectation of privacy in the phone numbers they dial, because this information is not as sensitive as the content of the communications. The Electronic Communications Privacy Act of 1986 makes a similar distinction, and provides strict protections for the content of communications but only limited protections for ‘envelope’ data, such as names of senders and recipients, addresses, and phone numbers. However, as Daniel Solove points out, in some contexts or circumstances, people are quite sensitive about their whereabouts or with whom they are talking; moreover, this envelope/content distinction hardly squares with Internet technology (Solove 68–69; cf Solove and Schwartz 151–53). Smith supports the so-called ‘third party doctrine’, which provides that if information is possessed or known by a third party, then, for purposes of the Fourth Amendment, an individual lacks a reasonable expectation of privacy in the information.

33.  In June 2013, leaks by Edward Snowden revealed the bulk collection of domestic metadata—both phone and email records showing who contacted who—of one aspect of the Stellar Wind surveillance programme. The National Security Agency (NSA) used such metadata for contact-chaining, or analysing social links between people in search of hidden associates of known terrorism suspects. Snowden’s leak also revealed the existence of the Foreign Intelligence Surveillance Act (FISA) Court orders authorizing this programme. The newly installed Obama administration did not think it appropriate to shut down the bulk collection of metadata, partly because of Smith v Maryland (Savage 164–170 and 571–573; Solove and Schwartz 205–206). The US government’s collection of domestic metadata is now under the control of the USA Freedom Act. United States v Forrester, held that computer surveillance of the to/from addresses of email messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account was indistinguishable from the use of a pen register that the Supreme Court approved in Smith v Maryland. Therefore, such surveillance did not constitute a Fourth Amendment search.

34.  On the other hand, in Bartnicki v Vopper, the US Supreme Court held that the First Amendment prohibited imposition of civil liability on a journalist for his intentional disclosure of an illegally intercepted cellular telephone conversation concerning matters of public concern. The same principle would apply to intentional disclosures of email messages.

35.  As to regulation of the contents of telephone conversations, Sable Communications of California, Inc v FCC held that while statutory prohibition of obscene interstate commercial messages was constitutional, prohibition of indecent ‘dial-a-porn’ messages was not sufficiently narrowly drawn to serve the legitimate interest of protecting children. Thus, it violated the First Amendment.

36.  In Europe, legal principles regarding communication privacy have developed since Klass and others v Germany, decided by the European Court of Human Rights (ECHR) (Letteron 389–90). In this case, the statute in dispute empowered government authorities to survey emails and telegraphic messages, and to listen to and record telephone conversations in order to protect against imminent dangers threatening the free democratic constitutional order. While the Court admits that the surveillance constitutes interference by a public authority with the right to respect for private and family life and correspondence, as guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), it states that the statute restricts rights only as far as is strictly necessary for safeguarding democratic institutions. This case law doctrine was confirmed in Malone v The United Kingdom, condemning the British practice of telephone tapping, the conditions of which were not clearly enacted through legislation. The ruling also states that the practice of the British Post Office in handing over ‘envelope’ information to the police infringes Art. 8, because the practice is not based on legislation. The doctrine was also confirmed in Kruslin v France, which condemned the quality of the French statute permitting telephone tapping. Furthermore, in Craxi v Italy, the Court states that when transcripts of telephone conversations intercepted by public investigators are deposited with the court registry, the government should fulfil its obligation to secure the accused’s right to respect for his private life.

37.  In 2013, the whistle-blower Edward Snowden revealed that the NSA had conducted massive-scale hacking and eavesdropping worldwide into Internet as well as telephone communications. The NSA’s surveillance, in cooperation with its Anglophone ‘Five Eyes’ partners (Canada, Australia, New Zealand, and Britain), covered not only its usual antagonists, like Russia and China, but also its European and South American allies. With the help of the British GCHQ, the NSA spied on G20 leaders during a 2009 summit in London. German Chancellor Angela Merkel’s personal mobile phone was also monitored by the agency. These revelations instigated reactions from various countries. In February 2016, Brazilian President Dilma Rousseff announced plans to build a new undersea cable linking South America with Europe in order to make it harder for the NSA to siphon off information. In April 2016, the European Parliament voted for tough new rules on data privacy, which included the right of EU citizens to erase their digital records from the Internet. And Deutsche Telekom has taken an initiative to build a new Internet network encompassing the Schengen area, to protect European Internet traffic from US surveillance (Harding 274–76; Solove and Schwartz 204–06).

38.  In June 2013, Maximilian Schrems, an Austrian citizen and Facebook user, complained to Ireland’s Data Protection Commissioner that Facebook’s transfer of his personal data to the United States could not guarantee an adequate level of protection, in the light of Edward Snowden’s revelations. The Irish authority rejected the complaint on the ground that, in 2000, the European Commission decided that, under the ‘safe harbour’ scheme, the United States ensured an adequate level of protection of personal data transferred (Commission Decision 2000/520/EC (26 July 2000) (EC)). The Irish commissioner’s decision was challenged before the High Court of Ireland, which referred the case to the EU Court of Justice to ascertain whether the decision of the European Commission is binding on national authorities.

39.  In Maximilian Schrems v Data Protection Commissioner, the EU Court of Justice held that a Commission decision finding that a third country ensures an adequate level of protection of the personal data transferred cannot reduce the powers available to the national authorities. Observing that the ‘safe harbour’ scheme is applicable solely to American undertakings, and that US public authorities are not subject to it, the Court points out that national security, public interest, and law enforcement requirements of the United States prevail over the ‘safe harbour’ scheme, so that American undertakings are bound to disregard the protective rules of the scheme where they conflict with such requirements. In particular, the Court adds, US legislation ‘permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life’. The Court concludes that the Commission’s ‘safe harbour’ decision (2000/520) is invalid because it denies national authorities the power to examine, with complete independence, whether the ‘safe harbour’ scheme affords an adequate level of protection of personal data under EU law. It entails that the Irish authority should examine Mr Schrems’ claim ‘with all due diligence’.

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