Adieu and Farewell to the Data Retention Directive

Anita PicAnita Davies

The European Union is all too often portrayed as a creature defined by over-regulation – be it the infamous “bendy banana” rules or the great chocolate debate. It is easy (and sometimes politically convenient) to forget that the EU and CJEU can serve to protect individuals from overt (and covert) state regulation. As of a CJEU decision this week to annul the Data Retention Directive (2006/24/EC), it will be very difficult for the Home Secretary, Teresa May, to push through the Communications Data Bill (also known as the “Snooper’s Charter”).

The bill was abandoned in May 2013 following opposition from the Lib Dems, but has shown signs of resurfacing. The bill would give police and security services access, without a warrant, to details of all online communication in the UK – such as the time, duration, originator and recipient, and the location of the device from which it was made. The bill depends however, on operators being obliged to store customers’ details and records. The data retention directive obliged companies to retain data and information of citizens using electronic communications networks – but now that it has been annulled the responsibility of operators to retain data is far more ambiguous.

The CJEU decision resulted from proceedings taking place in Ireland and Austria – where challenges had been mounted regarding the legality of national legislative and administrative measures concerning the retention of data. The Court ruled on Wednesday that the purpose of the Data Retention Directive, i.e. ensuring that communications data was available in order to investigate and fight serious crime, was compatible with the European Rights framework. However, the Directive itself entailed a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data (Articles 7 and 8 of the CFREU), without that interference being limited to what was strictly necessary.

The Court noted that the data being retained enabled:

“very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” [§27].

Given the potential conclusions the Court found that:

“The EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data” [§54].

The Directive lacked such precise rules and appropriate safeguards.

In particular the Court objected to the fact that the Directive did not discriminate between individuals. The Directive covers all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. The Directive also fails (somewhat surprisingly given its purpose) to define the notion of “serious crime”. The Court found that the data retention period (6 to 24 months) was too generic and that the Directive did not require that the data be retained within the EU itself.

The CJEU rarely annuls directives, and the annulment of the Data Retention Directive perhaps reflects growing concerns over the scale of government data monitoring in the wake of revelations of the scale of NSA data monitoring, and a turning of the tide against the generalised collection and retention of data. The European Data Protection Supervisor has welcomed the judgment and made a barbed reference to the role of the USA in data collection:

The judgment also means that the EU should take a firm position in discussions with third countries, particularly the U.S.A. on the access and use of communications data of EU residents.”

An interesting question is the effect of the annulment on national legislation. In a post on the LSE Media Policy Project Innocenzo Genna suggests that the annulment does not have an automatic effect on national legislation. Member states have a choice between abrogating national data retention legislation; or modifying that legislation in order to meet the “proportionality concern” of the Court. Genna also points out that from the point of view of communications operators they can now argue that they have no responsibility to retain data. On the other hand, individuals may now have a case against operators on the grounds that the retention of their personal data on the operators’ servers is an infringement of European privacy rights.

The European Commission will be expected to provide guidance as to next steps regarding data retention. The Data Protection Supervisor has called for the Commission to “reflect on the need for a new Directive, which will also prevent member states from keeping or imposing the same legal obligations nationally as laid out in the now invalid Data Retention Directive.” Commissioner Malstrom, responsible for Home affairs, has declared that:

“The judgement of the Court brings clarity and confirms the critical conclusions in terms of proportionality of the Commission’s evaluation report of 2011 on the implementation of the data retention directive. The European Commission will now carefully assess the verdict and its impacts. The Commission will take its work forward in light of progress made in relation to the revision of the e-Privacy directive and taking into account the negotiations on the data protection framework.”

As to what the UK government will do in the face of the ruling; according to the Guardian a Home Office spokesperson said:

“We are considering the judgment and its implications carefully. The retention of communications data is absolutely fundamental to ensure law enforcement have the powers they need to investigate crime, protect the public and ensure national security.”

It is unlikely the latest ruling had done anything to thaw relations between Teresa May and the EU.

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