Amidst all of the coverage of Mark Zuckerberg’s congressional testimony last week, you may have missed another consequential headline for Facebook — and for everyone who uses the internet.

An Irish court ruled that U.S. surveillance programs result in the “mass indiscriminate” processing of Europeans’ private data, and it expressed serious concerns about the lack of legal remedies for this surveillance. If the European Union’s highest court agrees, it may limit the ability of companies to easily move data from the EU into the U.S. In other words, NSA spying could have a major impact on the profits of Facebook and other Silicon Valley giants.

One of the central issues in the case, known as the Schrems litigation, is whether the breathtaking scope of NSA surveillance violates users’ rights. That’s because under European law, companies face restrictions on transferring data to countries with weaker privacy rules. To address those restrictions, in the 1990s, the EU and the United States negotiated an agreement known as “Safe Harbor,” which allowed companies doing business in the EU to transfer data to the U.S. based on the principle that the U.S. ensures an “adequate” level of protection for that information.

In 2013, Edward Snowden’s revelations made clear that NSA spying programs involve massive violations of privacy. An Austrian lawyer and privacy activist, Max Schrems, took note. Schrems brought a suit against Facebook Ireland, which relied on the Safe Harbor agreement to transfer data to Facebook in the U.S. He argued that as a result of NSA spying, the U.S. failed to adequately protect Europeans’ data. The case made its way to the Court of Justice of the European Union, the highest court in matters of EU law. The court invalidated the Safe Harbor agreement in 2015, based in large part on the court’s concerns about the vast extent of U.S. government surveillance.

Unsurprisingly, that landmark ruling resulted in substantial fallout for American tech firms and multinationals that do business in the EU. Afterward, the U.S. and EU rushed to negotiate a new agreement, called Privacy Shield, with the hope that it would withstand scrutiny by the EU’s high court. Some companies also began relying on alternate protocols to transfer data to the U.S.

In 2015, Schrems filed a new complaint in Ireland, this time challenging Facebook’s reliance on one of these alternate protocols to transfer data, once again raising concerns about U.S. government spying. In court in Dublin, Facebook argued that its users’ data is sufficiently protected and that if European citizens are illegally spied on, there are sufficient remedies available.

However, as I explained in expert testimony for Schrems, those claims are completely divorced from reality.

When people’s data is transferred from Europe, it is vulnerable to warrantless mass surveillance by the NSA and other agencies under two broad spying authorities: Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12,333. The U.S. can target law-abiding Europeans under programs such as PRISM, which pulls information from American tech firms, and Upstream, which grabs communications directly from the internet’s physical infrastructure as they’re in transit. And in practice there are few, if any, effective remedies because the U.S. government almost never officially notifies the millions of people it subjects to this spying. Without notice, it is extremely difficult to challenge this surveillance in court.   

In light of these facts, the Irish court rejected several of Facebook’s arguments. It ruled that the U.S. government engages in mass surveillance and found that people subject to U.S. surveillance do not receive notice. In addition, it concluded that concerns about the lack of remedies are “well-founded.”

The court also referred 11 legal questions to the European Court of Justice, including questions about the broader Privacy Shield agreement. That’s very significant because if the EU’s high court determines that the U.S. fails to adequately protect Europeans’ data or that U.S. legal remedies are insufficient, Facebook and thousands of other companies will face enormous hurdles in transferring data across the Atlantic.

The fatal flaw in Privacy Shield is that it doesn’t address the fundamental problem: Because of mass surveillance and inadequate remedies for that surveillance, the U.S. simply cannot satisfy the standards enshrined in EU law. Moreover, based on changes in U.S. law since the EU high court’s 2015 opinion, the U.S. government may claim that Congress has given it even broader authority to spy.

Facebook may appeal last week’s decision to another Irish court, so we don’t yet know when the European Court of Justice will hear Schrems’ case. But one thing is certain: The NSA’s sweeping surveillance programs have taken a huge toll on privacy. Silicon Valley may pay the price next.

In a scathing decision issued on Wednesday evening, a federal judge held Kansas Secretary of State Kris Kobach in contempt for repeatedly and willfully disobeying court orders that he comply with federal voting rights law.

The contempt ruling by Chief Judge Julie Robinson, who was appointed by George W. Bush, follows years of attempts by Kobach to evade, undermine, or ignore the court’s directive that he register and notify all eligible voters in accordance with the National Voter Registration Act. The judge lambasted Kobach for his “history of noncompliance and disrespect for the Court’s decisions in this case.”

Kobach’s Long History of Defying the Law

Before Kris Kobach took office as secretary of state, Kansans could register to vote the same way that people do in virtually every other state in the country: by submitting a sworn oath of citizenship under penalty of perjury. In 2013, Kobach implemented a pet law he had drafted and pushed through the Kansas Legislature, requiring people to track down a citizenship document — such as a passport or birth certificate — before they could be registered to vote. The burden of Kobach’s law on voters was devastating.

Large numbers of citizens — disproportionately minorities — don’t have a passport or birth certificate and don’t have the money to obtain replacement documents. By December 2015, more than 30,000 Kansans had been disenfranchised, approximately 12 percent of all registration applications since the requirement went into effect. The NVRA, popularly known as the Motor-Voter law, prohibits unduly harsh registration rules and requires that states make voter registration easy and straightforward.

In May 2016, Judge Robinson issued a preliminary ruling blocking Kobach’s law as illegal under the NVRA. The ruling was grounded in the clear text of the NVRA and was consistent with a 2013 Supreme Court decision written by Justice Antonin Scalia that had already rejected Kobach’s legal theory for his documentation requirement.

Kobach’s Second Chance

After issuing her decision, Judge Robinson took pains to give Kobach an opportunity to file an emergency appeal requesting a stay of her preliminary injunction so that a higher court could determine if her ruling was in error. Kobach’s stay request was swiftly rejected by the 10th Circuit Court of Appeals. Judge Robinson then ordered Kobach to register the voters covered by her injunction and notify them that they could vote. She wrote: “the Court is confident that the Secretary will be able to fashion a conspicuous, easily understood notice that will apprise voters of the status of their registrations and their right to vote in federal elections in 2016.”

Any trust in Kobach was plainly misplaced.

As the 2016 election approached, it became clear that Kobach had no intention of actually registering voters as the court had directed. Kobach refused to add voters to the state’s registration list. Instead he sent deceptive and confusing notices telling individuals that they could not become registered until they had produced citizenship papers. Kobach made statements in separate court proceedings and in the media that he needed to keep these voters unregistered so that it would be easier for him to eliminate them from the voter rolls if he later won on appeal.

It was only after the court ordered Kobach to appear at a contempt hearing, following the ACLU’s charges that he was defying court orders, that Kobach agreed to comply one the day before the hearing.

Kobach’s Third Chance

In extending him yet another chance to follow the law, Judge Robinson was clear that Kobach must treat all voters covered by her injunction as any other registered voter. This meant providing voters whose registrations had been previously suspended with the same type of postcard notification that all other Kansas voters receive, confirming they are registered and advising them of their polling location.

Kobach expressly promised Judge Robinson on the record that he would ensure that any voter who was previously suspended would get the same postcard notification that every other voter receives. Of course, that didn’t happen. The ACLU learned later in 2017 that the postcard notifications had never been sent. When the ACLU highlighted this clear problem, Kobach’s office reneged, now claiming that they never had any obligation to send the postcard notices that they had already promised to send.

Kobach’s office also stated that they would not update the election manual on the secretary of state’s website to reflect Judge Robinson’s decision, even though the manual is crucial to ensure that that county election officials and the public understand the correct eligibility requirements for voter registration. Kobach’s office refused to change instructions to county election officials unless the Supreme Court weighed in to affirm Judge Robinson’s order — a process that would typically take years.

This is contempt of court.

When questioned at a final contempt hearing in March, Kobach resorted to blaming anyone else for violations of the order, including his own assistants and paralegals. As the judge put it, “Defendant deflected blame for his failure to comply onto county officials, and onto his own staff, some of whom are not licensed attorneys.”

Judge Robinson told Kobach “You are under an ethical obligation to tell me the truth . . . that’s why lawyers are licensed.” She said, “I honored and trusted what you told me, Mr. Kobach.”

But Kobach simply cannot be trusted. He has already said that he intends to appeal Judge Robinson’s ruling. It is clear that the secretary of state believes he need only answer to himself and not the law. As a result of Kobach’s willful defiance of the law, many Kansans who should have been seamlessly registered to vote have been trapped in limbo for no reason at all.

The contempt hearing is just one part of the larger case that the ACLU is fighting against Kobach’s documentary proof-of-citizenship law which blocked more than 30,000 people from registering to vote. As he continues to defend both himself and this law in court, we should all remember his record.

In the past month, the Department of Justice has issued a series of stunningly senseless, wasteful, and cruel immigration policies. It ended a program to notify immigrants of their rights in deportation cases. It set an arbitrary and unreasonable quota for immigration judges. It enabled judges to make asylum decisions without a hearing. And it doubled down on a failed “zero tolerance” policy that aims to prosecute everyone accused of crossing the border without authorization.

Like other Trump administration moves, these policies distort the facts, dehumanize immigrants and inflict fundamental damage on the legitimacy of our legal system.

On April 10, the Justice Department announced that it is ending its Legal Orientation Program, which started during the George W. Bush administration to provide people who are detained and facing deportation with basic information about immigration laws and their rights. The LOP was an important yet inadequate lifeline, since only 14 percent of detained immigrants manage to obtain an attorney, and others must defend themselves against government lawyers who specialize in the infamously complex immigration code.

The LOP has long had bipartisan support from Congress, and from the National Association of Immigration Judges, because it was also a lifeline for the under resourced immigration courts. Without providing this basic information to immigrants, immigration judges would find it even more difficult to do their job of ensuring that people understand their rights and are making informed decisions. But in today’s Justice Department, even that flimsy lifeline has been cut. The aim is clear: to speed up deportation, without due consideration of the law or facts in a person’s case.

The impact of LOP’s end is multiplied by Sessions’ other recent policies. On March 5, he took the unusual step of unilaterally reversing a 2014 decision by the Board of Immigration Appeals that had required immigration judges to hold a hearing before deciding asylum cases. This cleared the way for asylum applicants — most of whom don’t have lawyers, don’t understand the legal system, and may not speak English — to be deported without ever having a chance to state their case to a judge. Soon after, he announced that immigration judges should meet an arbitrary quota of deciding 700 deportation cases a year.

Sessions has said his intent is to clear a backlog in immigration courts. But his chosen methods undermine the fundamental role of those courts: to determine whether the government is correct in its assertion that a person is deportable or has a legal right to remain, such as a valid asylum claim.

What’s behind Sessions’ “streamlining” ideas? He wants to falsely cast immigrants and refugees as criminals. He made that clear with the last of his April announcements when he called for a “zero tolerance” policy mandating criminal prosecution of every person accused of crossing the border without authorization. In an April 11 speech to the Texas Border Sheriffs’ Coalition and the Southwestern Border Sheriffs’ Coalition, Sessions justified charging anyone who crosses the border with a misdemeanor by suggesting they are all violent criminals and drug smugglers.

In fact, illegal entry and reentry — now holding third- and first-place among all federal crimes charged in the United States — by definition do not entail violence or drugs. Between March 2017 and February 2018, prosecutions of illegal entry increased more than 448 percent, even though border crossings are at an all-time low. Our government is spending an estimated $1 billion a year just on the cost of incarcerating people convicted under these statutes, which does not include the costs of diverting federal agents, prosecutors, and court resources from actually stopping violent crimes. And Border Patrol’s claim that these prosecutions deter people from crossing has been debunked by empirical data.

The Justice Department’s past experiments show what “zero tolerance” will do. Some U.S. Attorney’s Offices along the southern border have implemented some form of “Operation Streamline” since 2005, improvising short cuts to process a high volume of misdemeanor illegal entry cases. Operation Streamline caused the U.S. District Court in Arizona to declare a judicial emergency in 2011 because of the overwhelming strain on the court’s resources, and led the court to bypass the federal Speedy Trial Act’s protections for criminal defendants.

The U.S. Court of Appeals for the Ninth Circuit found that the policy resulted in gross violations of federal law. Courtrooms full of 50 or more people accused of illegal entry were forced to go through assembly-line proceedings, responding to a judges’ questions in chorus with dozens of others and making enormously important decisions without full information. The entire process of defending against a federal criminal charge would be collapsed into a single proceeding in which people meet their attorneys for the first time and get a coercive “exploding” plea offer that forces them to choose immediately between taking the plea and getting a reduced sentence or remaining jailed for months in order to stand trial. This process gives even defendants who have valid defenses every incentive to plead guilty. In Sessions’ “zero tolerance” world, these injustices will multiply.

A fair day in court can make all the difference. When I was a public defender, I represented a man charged with illegally reentering the United States after deportation. He had been a lawful permanent resident since he was a toddler, but was deported to the country of his birth, where he knew no one. He tried for years to make a life there, but he finally could not bear to be separated from his family and returned home to New York. Because we were not in a “streamlined” district, I had time to actually defend him. I discovered, after interviewing family members and researching immigration laws, that he had automatically attained citizenship as a child when his mother naturalized. He had been a U.S. citizen the whole time. I got his federal indictment dismissed, though I could not get back the years he was lost in exile by deportation.

In Sessions’ world, people like my client would have no chance. Our society cannot tolerate such unfairness.