EU Lawyers Confirm 'General And Blanket Data Retention Is No Longer Possible' In European Union

from the take-that,-David-Cameron dept

As we commented back in June, one of the key questions posed by the important ruling of Europe's highest court that the EU's current data retention requirements were "invalid" is: so what will the EU's Member States do now? Will they simply repeal their national legislation that was passed to implement the EU Directive, or will they claim that broad-based data retention is nonetheless still possible, as the UK has done? Although the UK government will doubtless try, it's going to be much harder to argue that the European Union's Court of Justice ruling leaves any room for the kind of broad-based data retention that David Cameron's government wants in the wake of the following news:

civil liberties campaigners AK Vorrat have now obtained internal documents showing that at a recent closed meeting of EU Justice and Home Affairs ministers the Council's Legal Services stated that paragraph 59 of the European Court of Justice's ruling on the Data Retention Directive "suggests that general and blanket data retention is no longer possible".
Here's what paragraph 59 of the ruling says:
Moreover, whilst seeking to contribute to the fight against serious crime, [the Data Retention] Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.
That admission is likely to strengthen legal challenges to the UK's new DRIP law. It also undercuts claims by the Australian Attorney General George Brandis that data retention is "very much the way in which Western nations are going". Since EU lawyers have said that any kind of excessive data retention is illegal in European Union nations, Brandis will find it harder to paint his own extreme retention plans as nothing to get worked up about and simply part of a wider trend. Whether or not they were before, now, they're certainly not.

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Filed Under: blanket data retention, data retention, eu, privacy, uk

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  1. icon
    ethorad (profile), 12 Aug 2014 @ 8:50am

    Re: Re: ELI5?

    Ah ok, think I have it.

    The Data Retention Directive 2006/24 (DRD) said that member states have to store everyone's data

    However Article 7 of the Charter of Fundamental Rights of the EU says that "Everyone has the right to respect for his or her private and family life, home and communications".

    In June the DRD was found to be invalid due to the conflict with Article 7, so member states are busy constructing ways to still do mass surveillance without breaching Article 7.

    These latest documents however suggest that (one of) the key points why the DRD breached Article 7 was it didn't require a link between the person being surveilled and a threat to security, or a particular place/time.

    Therefore in order to avoid breaching Article 7, any new data retention measures have to be targeted in some way.

    Therefore, no blanket surveillance of everyone.


    I'm sure our "security" services are busy working out loopholes. GCHQ could define "the world" as a specified geographic area but that would let those terrorists on the ISS go uncaught - and they sound like they are linked to the ISIS guys in Iraq. Instead GCHQ could take a leaf from copyright and define a limited time to be forever less a day.

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