The European Court sets a final limit on the retention of communications data floor


What’s going on?

European Court

The statements come after pronunciation From the Court of Justice of the European Union in 2014. In this important ruling, the European Court declared the European Communications Data Retention Directive invalid. This European directive imposed an obligation on European Union countries to enact a law requiring telecommunications companies and Internet service providers to retain all communication data for everyone. The aim was to combat serious crimes and terrorism. This made large amounts of data on all Europeans accessible to the police and the judiciary. The court ruled that the directive constituted a particularly serious violation of the right to protection of private life and personal data. All data on all Europeans, even without concrete suspicion, was kept for 6 to 12 months. Therefore, the court found that the violation went beyond what was necessary to combat serious crimes and terrorism.

After this ruling there The European Court has brought two cases regarding the retention of communications data in Sweden and the United Kingdom. Both countries have a regulation requiring telecom companies to retain contact data. In both cases, the European Court concluded that the obligation to generally and indiscriminately retain communications data was not permissible. Only targeted storage of this data is permitted. The obligation to retain funds may not exceed what is necessary to combat serious crimes. According to the European Court, there must also be prior independent supervision, for example by a judge.

Holland

In the Netherlands, the judge had already ruled in March 2015 The Communications Data Retention Act is ineffective with immediate effect. It was also decided that telecom companies can no longer be required to keep all contact data for all Dutch people.

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In response, a new draft law was introduced in September 2016 tightening the retention obligation. This draft law stipulates that the investigating judge must first grant permission before the public prosecutor can access the data. It was also decided that the Public Prosecutor may not request communications data unless they relate to more serious crimes that require pretrial detention.

The question is whether the new draft law is in line with the rulings of the European Court.

What does this have to do with human rights?

Articles 7 and 8 of the Charter of Fundamental Rights of the European Union state that everyone has the right to protection of their private life and personal data. This is explained in more detail in the European Directive on Privacy and Electronic Communications (Directive 2002/58/EC). The right to protection of private life and personal data is not inviolable. Exceptions are possible. These purposes must serve a legitimate purpose, be necessary to achieve that purpose, and be proportionate.

Regarding the Communications Retention Act, the Dutch court ruled that combating serious crimes and terrorism is a legitimate aim. But the violation of Dutch law on the right to protection of private life and personal data goes further than what is absolutely necessary to combat serious crimes and terrorism. The judge therefore ruled that this law violates Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

In cases involving Sweden and the United Kingdom, the European Court ruled that the general obligation to retain all communications data goes beyond what is strictly necessary to achieve that purpose; Combating serious crimes. In light of Articles 7 and 8 of the European Charter, the European Court considers that this general retention obligation is in conflict with the European Directive.

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Megan Vasquez

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