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:
- 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".
- 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.
- 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".
References: - Advocate General's opinion: http://curia.europa.eu/juris/document/document.jsf?text=&docid=145562&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=295646
- AK Vorrat comments: http://www.vorratsdatenspeicherung.de/images/comments-ag-opinion-rev.pdf
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