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European Court to rule on communications data retention (5 Mar 2010) Print E-mail

This week, the Irish High Court has decided to ask the European Court of Justice to rule whether EU communications data retention rules violate the EU Charter of Fundamental Rights. The highest courts of Romania and Germany have already ruled that national legislation mandating the retention of records on everybody's telecommunications ("data retention") was unconstitutional.

The Irish High Court decided that data retention had the potential to be of "importance to the whole nature of our society".[1] "[I]t is clear that where surveillance is undertaken it must be justified and generally should be targeted". The Court ruled that civil liberties campaign group Digital Rights Ireland had the right to contest "whether the impugned provisions violate citizen's rights to privacy and communications".

Sandra Mamitzsch of the German Working Group on Data Retention responds: "To avoid a defeat before the European Court of Justice the European Commission must propose swift amendments to the unconstitutional data retention directive. The EU-wide compulsion to collect communications data is outdated and must be repealed. Blanket data retention has proven to be superfluous, harmful or unconstitutional in many states across Europe and the world, such as Germany, Austria, Belgium, Greece, Romania, Sweden and Canada. These states prosecute crime just as effectively using targeted instruments, such as the internationally agreed Convention on Cybercrime[2]."

"Until the European Court of Justice has decided on the validity of the data retention directive, no further data retention laws should be enacted", warns Patrick Breyer of the German Working Group on Data Retention. "Member states should now notify the EU Commission that they exert their right not to transpose the data retention directive on grounds of public policy (article 114 (4) TEU). We expect the European Court of Justice to follow the Constitutional Courts of Romania and Germany and rule blanket data retention unconstitutional. The EU regulations must therefore be made more flexible to allow for alternative procedures that work more intelligently than by stockpiling untargeted personal data."


A 2006 EU directive requires every EU member state to compel phone and Internet companies to collect data about their customers' communications.[3] In September 2009 the Constitutional Court of Romania ruled that such indiscriminate data retention violates "the rights to private life, secrecy of the correspondence and freedom of expression."[4] In March 2010 the German Federal Constitutional Court found the German provisions on data retention "as a whole unconstitutional and void".[5]

The European Commission is currently reviewing the EU data retention directive.[6] German Minister of Justice Sabine Leutheusser-Schnarrenberger, representing Germany in the EU Council, has yet to expressly call for the abolition of data retention. In April more than 40 German organisations and associations asked her in a joint letter to "push for the abolition of EU telecommunications data retention requirements".[7] On 25 April, the German Liberal Party (FDP) passed a motion proposed by Leutheusser-Schnarrenberger and others, saying that "there must be no deviation from the principle that lies at the heart of the rule of law, providing that a person needs to anticipate state surveillance and investigation only if under suspicion. Surveillance of all citizens in the absence of suspicion such as by means of data retention violates this principle. The Liberal Party therefore commits to improving the law enforcement authorities' personnel and physical resources".[8]

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