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Communications data retention: Civil liberties NGO slams EU Advocate General's opinion (17 Mar 2014) Print E-mail

 Prior to the EU Court's decision on the blanket retention of communications data ("meta data") German civil liberties NGO "AK Vorrat" strongly criticizes the opinion[1] delivered by Advocate General Cruz Villalón. Villalón's recommendation to uphold the blanket collection of all communications data with minor restrictions failed to address "several salient issues", was not in line with the generally recognised definition of "data processing" and "lacks a sufficient analysis of the severe implications of blanket data retention on the freedom of expression and information on-line".

In a 29-page analysis[2], AK Vorrat raises three major objections to the opinion:

  1. While the EU was competent to harmonise the telecommunications market, the EU data retention directive had "resulted in a far larger patchwork of national blanket retention legislation than would have existed without the Directive". In order to create a level playing field it would suffice to prohibit national data retention legislation throughout the EU or to make full cost reimbursement compulsory where national data retention legislation exists. An EU-wide obligation to blanket data retention even in States whose parliaments, population or constitutional courts reject the instrument could not "legitimately be justified and considered proportionate on the basis of justifications and objectives which are essentially economic".
  2. Retaining information on any telephone call, e-mail and Internet connection including the position of mobile devices, just in case the information might be useful for future investigations, was by no means a "perfectly legitimate objective" and "necessary" as claimed by the Advocate General. Crime statistics proved that states in and beyond Europe prosecuted crime just as effectively by using targeted instruments, such as recording data that is needed for a specific criminal investigation only (“data preservation”). There was not a single EU Member State where blanket and indiscriminate telecommunications data retention had a statistically significant impact on crime or crime clearance.
  3. Considering that the EU data retention directive violated fundamental rights at least in its present form, the privacy activists "strongly disagree" with the Advocate General's opinion that the finding of invalidity should be suspended. Staying the finding of invalidity would "create a dangerous precedent and undermine the effectiveness of fundamental rights". Only by finding the directive invalid could the Court make sure that the legislature will, for the first time, fully and properly assess all options and alternatives, including the option of targeted data preservation.

Uli Breuer of the German Working Group on Data Retention (AK Vorrat) comments: "Blanket and indiscriminate telecommunications data retention is the most privacy invasive instrument and the least popular surveillance measure ever adopted by the EU. The Data Retention Directive mandates the indiscriminate collection of sensitive information about social contacts (including business contacts), movements and the private lives (e.g. contacts with physicians, lawyers, workers councils, psychologists, helplines, etc.) of 500 million Europeans that are not suspicious of any wrongdoing. The EU Court of Justice finally needs to put an end to this! The EU should target suspects of serious crime instead of placing all 500 million EU citizens under general suspicion."

According to AK Vorrat, blanket and indiscriminate telecommunications data retention has proven harmful to many sectors of society: "It disrupts confidential communications in areas that legitimately require non-traceability (e.g. contacts with psychotherapists, physicians, lawyers, workers councils, marriage counsellors, drug abuse counsellors, helplines), thus endangering the physical and mental health of people in need of help as well as of people around them. The inability of journalists to electronically receive information through untraceable channels compromises the freedom of the press, which damages preconditions of our open and democratic society. Blanket data retention creates risks of abuse and loss of confidential information relating to our contacts, movements and interests. Communications data are particularly susceptible to producing unjustified suspicions and subjecting innocent citizens to criminal investigation."

The EU Court of Justice has not yet announced a date for giving its judgement. The proceedings have been initiated by Digital Rights Ireland and the Austrian privacy NGO "AK Vorrat Österreich".

  1. Advocate General's opinion:
  2. AK Vorrat comments:
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