Dear Friends and Supporters

As you all know, for years now I have been fighting a battle to vindicate my private data protection rights in connection with FATCA.

The purpose of this update is to provide some background to the recent interim judgment and also ask for your help.

1. Background to the recent judgment 

You will have seen the recent judgment in favour of HMRC in relation to a strike out application I made. Essentially, the judge decided that I did not satisfy the threshold for throwing out HMRC's argument that my case is an "abuse of process".

2. What my case is about 

The basis of my case should be relatively straightforward - does the collection of my data under FATCA, a system launched in 2010, clash with my rights under the GDPR and the UK data protection legislation, which were introduced in 2016 as a reaction to Edward Snowden’s revelations about excessive bulk data collection by the US and the UK?

3. HMRC hates my case 

For obvious reasons, HMRC hates my case and does not want my case to be heard in court, as it is a very good case.

We already had a trial date in the diary for four days in November 2023 and my team was ready. As were the US experts appointed by my team and HMRC.

So, what happened?

What happens usually in these cases.

4. HMRC has been stonewalling my case with procedural roadblocks

Essentially, the party that does not like the case to be heard (in this case, HMRC) starts throwing procedural obstacles in the way of the claimant.

In my case, the core of HMRC's procedural argument is that my case is not merely about my data protection rights, but a challenge on FATCA as a whole.

Following HMRC's reasoning, a challenge against FATCA as a whole should have taken place by way of a judicial review, which has a strict 3-month deadline.

The core of HMRC's case, therefore, is that my private law claim brought under the data protection legislation is a tardy judicial review through the back door - in a nutshell an "abuse of process".

HMRC's approach has been to shift the attention from the merits of my case to my "intentions" and those of funders in bringing and funding the claim. Are my "intentions" (and those of my funders) limited to data protection – i.e. to a private claim, or are my intentions (and those of my funders) wider – i.e. linked to striking down FATCA as a whole?

As part and parcel of that defence, HMRC required a disclosure of anything that would provide information on my intentions, and those of my private funder intentions.

5. The recent application

My team has tried to strike out HMRC's argument that my case is an "abuse of process". Unfortunately, the judge felt that I was unable to meet the high bar in showing that HMRC's abuse of process defence is hopeless, and held this should be still be decided at trial. This is the essence of the recent judgment.

6. Wider implications for my case 

It is important to point out that the High Court has not yet said anything about data protection.

But unless the judgment is successfully appealed, my case cannot go ahead.

7. Fighting for data protection in the UK is prohibitively expensive

The whole thing is a bit mad. In Europe, where the GDPR was introduced, litigating on a point of principle is relatively inexpensive and the funds raised through CrowdJustice would have been sufficient to cover all legal costs.

However, when the UK introduced the GDPR, there were no accompanying measures to make data protection claims affordable to all. Instead, the ordinary rules apply, which in the UK means that a court case such as this can cost a multiple of what I have been able to raise through CrowdJustice, and I am fortunate that I was able to attract additional funding through an additional donor.

8. Questioning motives

Do I know the identity of all those who supported my case through CrowdJustice, or their individual intentions for supporting my case?

Certainly not, and I know from many reactions on social media that many donors prize their privacy. One supporter stated the obvious when they said in response to the judgment:

"problem here is the US Government has Americans living abroad terrified. In trying to find a legal case against FATCA abuse many donors requested to remain anonymous". 

This case should not be about my intentions. Nor those of my funders. It should be about whether HMRC breached my fundamental rights to privacy and data protection, which I believe they did.

Assume that I win the case. And that this has wider implications for FATCA as a whole? Should this prevent me from bringing a claim to defend my rights? I don't think so.

9. Access to Justice

The judgment has huge implications for the Rule of Law and Access to Justice. If this judgment is allowed to stand, claimants in this area of the law will find it difficult to attract funding. There is no money to be made from a GDPR case, so people like me do not have access to commercial funders. All I can rely on is crowdfunding and - where this is insufficient - additional funding through principled funders. However, HMRC's tactics of requiring extensive disclosure to ascertain intention will deter many potential funders from supporting cases like mine.

But without significant funding, cases such as mine cannot take off.

In other words, the recent judgment has wider implications for the Rule of Law and Access to Justice.

10. I NEED YOUR HELP 

My team has lodged an appeal and I would ask you please to consider contributing funds to CrowdJustice, not only because I need funds, but also because reaching or even beating the £156,000 stretch target would send a strong signal to HMRC and the Court of Appeal that my case has the backing of hundreds of people whose intentions, and identity, should be irrelevant.

Please help me continue the fight by clicking here and feel free to leave messages. Thank you so much! 

Warm regards

Jenny

Following last week’s decision by the Belgian data protection authority that the indiscriminate transfers of personal information under FATCA are unlawful and violate the GDPR on myriad counts, yesterday the Times and Telegraph here in the UK also picked up on what my legal team have been warning for many years – that the indiscriminate data transfers under the Common Reporting Standard, which is based on FATCA, threaten the lives of political dissidents by enabling authoritarian regimes to easily hunt them down. FATCA must now go to the top of the European Data Protection Board’s priority list to ensure a consistent application of the GDPR in accordance with the powers conferred on the EDPB by Art. 70 GDPR, and the Kafkaesque vicious circle must end.

My case is mentioned alongside the work of JR, whose European Parliament petition inspired my campaign, in a new research paper by Laura Snyder that is published this week in the Southern Illinois University Law Journal, entitled ‘The unacknowledged realities of extraterritorial taxation’. Her paper is available to read and download here.

Generous donor JP has offered to match-fund the next several pledges up to a total of £500. JP said:

“I want to find several people to partner me - I will match each new pledge up to a total of pledges of £500, turning £500 into £1000. This work Jenny and Filippo have been doing to safeguard our data is really important.”

Thank you JP!

Today's piece in Bloomberg by Andreas Kluth entitled 'Next, the Supreme Court decides how to punish US expats', reprinted in the Washington Post, mentions this case as part of 'a guerrilla insurgency of litigation [that] is now forming from Canada to Israel to Europe'. At the end of the day, however, my case is about ensuring that my personal fundamental rights are safeguarded.

The European Commission has still not dealt with the issues raised in any of the FATCA petitions, the first of which was submitted six years ago and supported by a 2018 study entitled FATCA legislation and its application at international and EU level and the European Parliament's Resolution on the adverse effects of FATCA, which passed by a huge majority mandate. 

This is despite the US Congress rejecting the introduction of a domestic version of FATCA in October 2021 after Senators, Congressmen and even the American Bankers Association raised the alarm to defend the fundamental right to financial privacy of US citizens and scorn the poor data security record of the IRS.

By leaving your name or initials as a comment when you make a pledge to this case, you are sending a message to the European Commission to finally deal with the concerns raised in these petitions.

A video from the webinar held by my legal team and their colleagues on 7 December 2021, entitled ‘FATCA - Is privacy catching up? A lesson from recent court cases’, is now available to view here.

Today the journal Tax Notes has published an article by Robert Goulder entitled ‘The FATCA Wars: Jenny Goes to Court’. He points out that my case‘illustrates how HMRC and the UK government’s Information Commissioner’s Office have neglected the country’s taxpayers as far as their data protection rights are concerned’. Recently, HMRC’s own annual report for 2020-2021 has coded their data security as a ‘red’ risk – the highest level of risk (see page 95). 

My claim was filed by my legal team this week at the High Court in London. This has been covered in the Economist, American Expat Financial News Journal, and today’s Financial Times.

As noted in the American Expat Financial News Journal, I was interviewed for yesterday's 4th of July episode of the Weekend show on BBC World Service. The segment, which is available to listen to here, starts at about 27 minutes in.

News about our campaign’s progress was circulated yesterday to lawyers, accountants, and trustees worldwide through their professional body, STEP.

Filippo Noseda, who leads my legal team, told STEP :

'For almost five years, the European Commission and EU Member States, as well as the UK, have been ignoring calls from campaigners to address the breach of fundamental rights caused by automatic exchange of information. Now, after incessant lobbying, the European Data Protection Board acknowledged the problem . . . an invitation by the EU's data protection watchdog to review automatic exchange of information agreements with third countries, including the US, cannot be ignored'.

This legal challenge has made significant progress. As explained on my legal team’s FATCA pages, last week the European Data Protection Board issued a statement in which it acknowledges the concerns we have raised and “invites the Member States to assess and, where necessary, review their international agreements that involve international transfers of personal data, such as those relating to taxation (e.g. to the automatic exchange of personal data for tax purposes)."

In addition to recent coverage of this legal challenge in TIME magazine, this month Filippo has been featured in the American magazine Family Wealth Report in relation to this case and the campaign against the Common Reporting Standard. The article mentions the latest letter sent on 17 February 2021 to the European Commission to urge the European Data Protection Board to ‘intervene in the debate concerning the compatibility of FATCA and other systems of automatic exchange of information on individuals' fundamental rights to data protection, data security and data privacy’. The letter was also covered this week by the American Expat Financial News Journal. 

This week an analysis of my legal challenge by Robert Goulder entitled 'Does FATCA have a Schrems problem?' appeared in the journal Tax Notes. He concludes that the automatic exchange of tax information ‘must respect applicable data protections’.  

Yesterday afternoon J.R., who presented a petition on FATCA before the European Parliament, and Filippo Noseda, who leads my legal team, spoke once again at a hearing about the petition, which is the inspiration behind my legal challenge. Filippo presented research revealing that the Commission misled the European Parliament about the depth of their involvement in FATCA and their data protection concerns about FATCA. The session is available to view online and starts at 17:46:10. These findings are also conveyed in a letter sent yesterday from my legal team to the Commission, which is available to read on the case correspondence page.

Today, Spear’s magazine published an article about the case, entitled ‘Inside one Mishcon tax lawyer’s plan to take on Fatca’ by editor-at-large Alec Marsh. 

Today's letter from my legal team to the European Data Protection Board, available on the case correspondence page, discusses Friday's response from HMRC and calls on the European data protection authorities to finally take a position in the Kafkaesque debate on the data protection implications of FATCA and other systems of automatic exchange of information.

Yesterday HMRC requested, and my legal team granted, an extension until 25 September for HMRC to send us their response to our Letter of Claim asking for adverse party costs to be waived. We hope that HMRC will adopt an approach to my claim that will recognise the public interest of this matter.

As reported by the American Expat Financial News Journal, on Saturday 29 August my legal team filed a Letter of Claim with HMRC under the Data Protection Act. 

Our case was recently discussed in a Bloomberg article entitled 'EU Privacy Law Offers Hope to Foreign Account Tax Law Critics’, and this week the case was highlighted in another piece that appeared in Bloomberg and several other newspapers including the Washington Post. 

Interest in this campaign is gathering pace. Yesterday, The Economist published an article about the case, entitled ’Should personal financial data be sent to foreign tax authorities?’. A related article appeared this week in The American on the IRS’s public 'naming and shaming’ list, which was mentioned in my legal team's 7 August 2020 letter to the UK’s Information Commissioner and the European Data Protection Board.

It is comforting to see that the arguments developed throughout the case with the ICO are being addressed. Thus, The Economist wrote:

"The [ICO] rejected [Jenny's] claim, even though it accepted that the tax authority did violate some GDPR guidelines. It is not the only European data-protection body to duck the matter […] The European Commission has also pulled punches. After first raising concerns about the data implications of FATCA, it then distanced itself from the issue, even claiming it had not been party to the original negotiations with the Americans, despite a document unearthed by an MEP, and seen by The Economist, suggesting that it was."

As reported today in the American Expat Financial News Journal, we are actively considering an appeal of the decision by the UK’s Information Commissioner’s Office (ICO). My legal team believes that there are serious questions to be answered, as the ICO refused to discuss the human rights angle of my claim and the data protection case law from the European Court of Justice.

The strength of our arguments and evidence going into Court to appeal the ICO’s decision is not in question. The question has been one of funds. The inability to bring the ICO's ineptitude before the English courts would be a huge hit for us, and a real tragedy for everybody who has been and will be affected by FATCA’s disproportionality.

Today a story about this legal challenge has appeared in WealthBriefing ('Hackers Threaten Global Account-Sharing Pacts, Law Firm Warns’, by Tom Burroughes).

Our case and the issue of data privacy in banking are highlighted as a major development for the legal landscape of the 2020s in the magazine published by Linklaters LLP, which is a member of the Magic Circle of elite British law firms. See page 13. 

Given the importance of this issue to the debate on data protection and privacy, my legal team at Mishcon de Reya have taken the unprecedented decision of publishing their correspondence, along with a background note summarising the case.

Filippo Noseda, who is leading my legal challenge against FATCA, discusses the case in today’s episode of the How to Keep Your Money podcast, which is now available on iTunes and Spotify.

Presenter Caroline Garnham talks to Filippo about advocating for our fundamental rights to data protection and privacy in the context of FATCA and the Common Reporting Standard (CRS), as well as other aspects of his career and his role as Visiting Professor at King's College.

The discussion of CRS starts at 14:30 and the segment about my FATCA legal challenge begins at 21:20.

How to Keep Your Money, Episode 15 - 'Private client from a common law and civil law perspective, Filippo Noseda: Mishcon de Reya'

Despite the extraordinary generosity of our supporters, we still do not have sufficient funds to cover the massive adverse party costs in Court. We've made significant progress and couldn't have got this far without you. This proves the House of Lords’ assertion that this route to justice is ‘expensive and effectively inaccessible to ordinary taxpayers’, even when they have the benefit of crowdfunding from an extremely dedicated community. 

Fortunately, judicial review is not the only path. Because of your immense devotion to this challenge, we have shown that this issue impacts the lives of hundreds of law-abiding people and that the strength of feeling on this is only going to increase over time. The EU shares our view. It is in the government’s best interest to address FATCA’s disproportionality without any further delay.

On 10 September, I set myself an initial target of £50,000 to be met within 30 days. Now I am working toward a stretch target of £120,000 to cover the costs of the case work as my legal team works hard to secure a remedy for us. Every donation helps to raise the profile of this issue.

Please do continue sharing and discussing the page with your friends and family, and on social media. It really does make a massive difference. 

Thank you again for your support,

Jenny

On Tuesday 12 November, the European Parliament held a televised debate entitled 'FATCA and its extraterritorial impact on EU citizens'. Filippo was asked to discuss our case, and his talk starts at 11:49:50 in the recording of the debate. Other speakers included representatives of the European Commission, the European data protection authorities, the European Banking Federation, the Accidental Americans Association, officials from France and the Netherlands, and the petitioner J.R., whose work led to the European Parliament’s report and resolution dated 5 July 2018. 

Read more about our case at the EU Parliament in the American Expat Finance Journal and International Adviser.

Thanks to your enthusiasm and support for our challenge, Filippo is 'Lawyer in the news'! 

Guardian https://www.theguardian.com/business/2019/sep/12/hmrc-faces-legal-fight-for-handing-britons-data-to-us-tax-officials 

Financial Times https://www.ft.com/content/e59ff84c-d56a-11e9-a0bd-ab8ec6435630

Economist https://www.economist.com/finance-and-economics/2019/10/03/americas-notorious-tax-compliance-law-faces-another-challenge