Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General

from the not-quite-what-we'd-hoped-for dept

Almost exactly a year ago, we wrote about two important cases before Europe’s highest court, the Court of Justice of the European Union (ECJ). They both involved the European Union’s Data Retention Directive, which obliges telecoms companies to retain metadata about their customers — now an even more contentious issue in the wake of Edward Snowden’s leaks. One case was from Ireland, brought by Digital Rights Ireland, which needs donations to carry on its great work, and the other from the Austrian digital rights group AKVorrat (which probably also needs support.)

As is usual, before the ECJ makes its ruling, the court’s Advocate General offers an opinion. It’s not binding, but it’s generally taken into account, and is often indicative of how the court will find. Here’s what the Advocate General has just published:

In his Opinion delivered today, Advocate General Pedro Cruz Villalón, takes the view that the Data Retention Directive is as a whole incompatible with the requirement, laid down by the Charter of Fundamental Rights of the European Union, that any limitation on the exercise of a fundamental right must be provided for by law. According to the Advocate General, the Directive constitutes a serious interference with the fundamental right of citizens to privacy, by laying down an obligation on the providers of telephone or electronic communications services to collect and retain traffic and location data for such communications.

Specifically, he says that from the retained data it is possible to create a detailed and thus intrusive picture of someone’s private life, and also notes that by storing this information, there is an increased risk it will fall into the wrong hands, causing damage to the privacy of the person concerned. Because of the seriousness of its incompatibility with fundamental European rights, the Directive should have spelt out key details, rather than leaving it to the Member States of the EU to interpret the rules as they thought best. He also found that:

the Data Retention Directive is incompatible with the principle of proportionality in that it requires Member States to ensure that the data are retained for a period whose upper limit is set at two years.

According to the Advocate General, there is no reason why the upper limit should not be set at just one year. Unfortunately, despite these serious flaws, he did not suggest that the Directive should be rescinded. Instead:

the Advocate General proposes, after weighing up the various competing interests, that the effects of a finding that the Directive is invalid should be suspended pending adoption by the EU legislature of the measures necessary to remedy the invalidity found to exist, but such measures must be adopted within a reasonable period.

In other words, the Advocate General seems to think the problems are fixable, provided the EU adopts suitable measures to address the issues he has raised.

That makes the current opinion something of a mixed bag. On the plus side, it has clearly found that the Data Retention Directive in its present form is incompatible with fundamental European rights; but against that, the Advocate General not only suggested that the problems could be rectified, but even explained how that might be achieved.

The full Opinion is, of course, much more complex than the rough summary above, and experts will argue over what the details might mean for data retention in Europe. In any case, what counts is the final judgement of the ECJ, which may have views that differ from the Advocate General’s Opinion in important ways. At least we are now closer to finding out.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General”

Subscribe: RSS Leave a comment
out_of_the_blue says:

I don't need to read it: they're all the same. Lead you on, then yank it away.

Listen, just stop believing a single word politicians say. They’re professional liars. They know the goal that the Establishment wants, then knowingly lie oppositely to the public, and all along contrive to put the real agenda in. This is just the standard tactic of raising false hopes in order to disperse the real opposition.

Between politicians, globalists, and corporations there’s not a bit of separation on ultimate goal: TO CONTROL YOU AND ME.

Why Mike and minions keep re-writing this standard tripe is the only question. They don’t appear to have a bit of cynicism, just keep putting out these false stories exactly as the mainstream media does. Techdirt is not the alternative, just has slightly more buzzwords used correctly.

Just because a lot of people have gotten a lot of easy money off teh internets doesn’t make it a plus overall: at the very least, the Internet enables spying on scale and in detail as never before.


Anonymous Coward says:

Re: I don't need to read it: they're all the same. Lead you on, then yank it away.

let me guess, you attended all 2 years of your schooling prior to the invention of the computer punch card.

My 90 year old grandmother has a better understanding of technology than you do. Understands its uses and its limitations. Understands the difference between Google and the internet.

Do you pine for the good old days of Nixon?
Do you miss the days were the population was left in the dark and could not discover the abuses of the Government? where the only information we received was the government sanctioned white wash?

Anonymous Coward says:

It could be worse for the EU. At least they don’t have telcos like AT&T logging everywhere you and your cellphone travels for the past 30+ years. Then an AT&T employee hands that information over to the NSA agent working in the office cubical directly next to him.

The spying via mass metadata and content collection problem, is never going to be solved by legislation. There are multiple reasons why this is true, but here are a couple of examples.

1. Individuals in charge of legislating policies about electronic communication, do not understand said technology or how it works and functions. In other words, lawmakers lack the technical expertise and are unqualified to legislate such issues. They also lack the will to do so.

2. Governments will never allow the majority of the human race, the ability to communicate over vast distances in private. That would allow people to organize into a large movement, and challenge a government’s authority.

There’s a few new private email services I’m looking forward to. One is called LEAP ( and the other Pilemail ( I can’t wait to sign up for an email account on these services. I am much more optimistic about technology solving human rights violations, than legislation.

Spying on cellphones can only be solved through free and open-source software. This includes modem drivers, firmware, and sim cards. Otherwise, cellphones will remain compromised back-doored devices that track their owners, forever.

That’s why Misrep. Rogers doesn’t want Huawei electronics, a Chinese corporation, selling their products in America. He knows the Chinese have all kinds of back-doors installed in Huawei devices. Just like America has all kind of back-doors installed in Samsung and Apple devices.

China is basically saying the same thing about Cisco, an American corporation. China doesn’t want to buy Cisco routers with all kinds of American back-doors built into them.

It basically all comes down to China and America agreeing, “You keep your back-doored crap off my lawn, and I’ll keep my back-doored crap off your lawn”. Lulz, epic fail for mankind, but when has the human race ever shown the slightest aptitude towards foresight? It never has, and that will be our undoing.

I would say my greatest disappointment with the human race, is it’s inability to learn from past history lessons. Always ignoring history, and so sure of itself that this time things will be different. That history is only a hindrance, standing in the way of our new, corrupt ambitions.

“This time it will all be different.”
-Some extinct civilization in the Milky Way galaxy

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...