In what can only be described as a national security and tech industry disaster for the United States, the Court of the European Union in Luxembourg struck down the “2006 Directive” that allowed the EU and the United States to share in intelligence gathering of telephone calls and internet data traffic.  The ruling means the master surveillance agreement between the U.S.and the 28 EU member states is now “null and void”. The ruling will undoubtedly also ensure that U.S. tech companies risk being boycotted in Europe as “co-conspirators” with U.S. surveillance.

The April 8th verdict comes after Austria and Ireland asked the EU tribunal to intervene following challenges by rights groups, local governments, and 11,130 private applicants. The Court ruled that because actions by United States National Security Agency expanded the interpretation of the “loose wording” of the agreement, the door was opened to “untoward snooping on private lives.” 

The Court’s ruling is seen as a boost to nationalist parties that are rising across the continent and are now favored in the polls to win control of the European Union Parliament elections in May. The nationalists, led by French National Front leader Marie Le Pen, have leveraged public frustration against the EU’s central power and control. According to Le Pen, “My goal is to be first" in France's vote for the European Parliament, “to raise the conscience over what the European Union is making our country live through.” Last week her party won a dozen town halls and more than 1,000 city and town council seats in French municipal elections.

German Green Party leader and EU Parliament member Jan Philipp Albrecht who is a strong advocate of EU social welfare state central power tried to shift blame for the growth of the European surveillance state onto  “giant U.S. tech and Internet companies have been exploiting loopholes to work around Europe’s outdated data protection rules.” Albrecht added, “We need reform and the regulation as soon as possible so that we can start negotiations directly after the [May] elections.”

The EU Data Protection Directive, passed in 2006, requires all internet and phone companies to store data on who contacts whom, when, how often, and from which locations. The data must be held for up to 2 years, so government agencies can use it to hunt down “serious crime”.  But the Court said the definition of “serious crime” is too “general.” It criticized the indiscriminate nature of surveillance targets because it “applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime”.

The Court also complained the law “does not ensure the irreversible destruction of the data at the end of the retention period” and “does not require that the data be retained within the EU,”. The Court ruled this opened the door to security breaches from outside Europe. The Court stated that access to the telephone and internet data should be subject to “prior review by a court or by an independent administrative body”.

The European Commission has not commented on the ruling, but an EU official told the euobserver online newspaper that “any new bill will take years to put together, and any work is unlikely to begin before the summer recess.”  The timing of the Court’s decision comes during a period of heightened surveillance, following Russia’s annexation of the Crimea and potential incursions in the Baltic States and Eastern Ukraine.

The Court critically referred to Facebook as key participants in the dragnet surveillance of European citizens. This may explain why the company just paid $19 billion to buy WhatsApp. The service does allow sending texts and photographs seamlessly and without paying the additional fees carriers charge for SMS messages and serves 450 million active users on any given day. But Facebook said WhatsApp “will remain largely independent from the Facebook social network.”  The acquisition appears to be a strategy to grow in Europe without the baggage of the now tarnished Facebook brand.

There has been no comment yet from the Obama Administration regarding the Court’s striking down of the United States’ key intelligence gathering agreement with Europe. But there can be no doubt that the ruling will reduce the security of American citizens and cause serious customer repercussions against the American technology industry. 

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