Does the EU need more anti-terrorist legislation?

 

Steve Peers

In the wake of the appalling attacks in Paris two days ago, it only took 24 hours for the EU Commission to state that it would propose a new wave of EU anti-terrorist measures in a month’s time. It’s not yet known what the content of this law will be; but the very idea of new legislation is a profound mistake.

Of course, it was right for the EU institutions to express sympathy for the victims of the attack, and solidarity as regards defence of free speech. Equally, it would not be problematic to use existing EU anti-terrorism laws if necessary, in order (for instance) to surrender the suspects in this crime on the basis of a European Arrest Warrant (EAW), in the event that they fled to another Member State.  The question is whether the EU needs more such laws.

For the EU has already reacted to prior terrorism offences, first as regards 9/11 and then to the atrocities in Madrid and London in 2004 and 2005. The result is a huge body of anti-terrorism law, catalogued here by the SECILE project. This comprises not only measures specifically concerning terrorism (such as substantive criminal law measures, adopted in 2002 and amended in 2008), but many other measures which make it easier to cooperate as regards terrorism as well as other criminal offences, such as the EAW, the laws on exchange of police information and transmission of evidence across borders, and so on.  

Moreover, there are proposals already under discussion which would apply to terrorism issues (among others), such as a new law on Europol, the EU’s police intelligence agency (discussed here), and proposed EU legislation on the transfer of airlines’ passenger name records(PNR).  

So what new laws is the Commission likely to propose? It may suggest a new version of the data retention Directive, the previous version of which was struck down by the Court of Justice of the European Union (CJEU) last spring, in the Digital Rights judgment (discussed here). Other ideas under discussion, according to leaked documents (see hereand here) are new laws strengthening mandatory checks at borders .  

Are any of these laws really necessary? Member States can already adopt laws on retention of communications data, pursuant to the EU’s e-privacy directive. As the European Parliament’s legal service has confirmed (see its advice here), if Member States adopt such measures, they will be subject to the constraints of the Digital Rights judgment, which bans mass surveillance carried out in the absence of safeguards to protect privacy. Equally, Member States are free to establish their own PNR systems, in the absence of any EU-wide measure (besides EU treaties with the USA, Canada and Australia on PNR). The question of whether mass surveillance is as such compatible with human rights has already been sent to the CJEU by the European Parliament, which has asked the Court to rule on this issue in the context of the EU/Canada PNR treaty (see discussion here).

It would be possible to adopt new laws calling for systematic border checks in specific cases. In practice, this would likely mean checks on Muslims who are returning after travel to places like Syria. It is questionable whether asking detailed further questions at the external borders will, by itself, really do a lot to prevent terrorism. After all, in the Paris attacks, it unfortunately proved impossible to prevent an apparent terrorist attack despite extensive anti-terrorist legislation on the books, and bodyguards protecting the staff of a known terrorist target.

There’s also a question of principle here. The Paris attacks were directed at free speech: the foundation of liberal democracy. Of course efforts should be stepped up to prevent such attacks from happening again; but existing laws allow for targeted intelligence gathering and sharing already, The Commission’s immediate response reeks of panic. And the direct attack on fundamental democratic principles this week in Paris is precisely the wrong context to consider that new legislation curtailing other fundamental freedoms is limited.

 

Barnard & Peers: chapter 25

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The Domino Effect: how many EU treaties violate the rights to privacy and data protection?

 

Steve Peers

Earlier this year, the Court of Justice of the European Union (CJEU) ruled in the Digital Rights judgment against the validity of the EU’s data retention directive, on the grounds that it provided for mass surveillance without any effective safeguards. Subsequently it ruled against Google,in what has become known as the ‘right to be forgotten’ judgment.

What are the longer-term consequences of the Court’s ‘Privacy Spring’? An Irish court has already referred the ‘Europe v Facebook’ case (discussed here) to the CJEU, asking in effect whether the EU’s ‘Safe Harbour’ arrangement on data protection with the USA is compatible with the rights to privacy and data protection, in light of the Snowden revelations. Now the European Parliament (EP) has decided to refer the proposed EU/Canada agreement on passenger name record (PNR) data to the CJEU, asking if it is compatible with the rights to privacy and data protection in light of the Court’s recent case law. That judgment would implicitly determine whether the separate EU/USAand EU/Australia treaties on PNR data, and the proposed PNR Directive, violate those rights also. And if the PNR treaties breach the rights to privacy and data protection, it would then be more likely that the EU/USA treaty on banking data transfers also breaches those rights in turn.

So, are we at the start of a ‘domino effect’ of a series of EU laws and treaties being ruled in breach of the rights to privacy and data protection by the Court of Justice, all falling in sequence now that the data retention Directive has been overturned? Or are the features of the different measures different enough to avoid this?  

Background

There’s a little bit of déjà vu in today’s decision by the EP to ask the CJEU about the EU/Canada treaty on PNR. Back in 2004, it asked the Court to rule on the original EU/USA treaty on the same subject. The Advocate-General’s opinion in that case ruled against all of the EU’s arguments, including the right to privacy point. However, the Court’s 2006 judgment only ruled on one of the EP’s legal arguments – that the EU/USA treaty had the wrong ‘legal base’, and should have been approved by using a different procedure (relating to police cooperation, instead of the internal market). And that procedure meant that the EP had no role in the approval of the treaty, or any power to ask the Court of Justice about its compatibility with EU law.

Eight years later, the legal environment is quite different. Since the Treaty of Lisbon entered into force in 2009, the EP (or the Commission, Council or a Member State) can ask the CJEU for rulings on the compatibility with EU law of EU treaties with third States on police or criminal law cooperation. Indeed, this will be the first such ruling. And while waiting for the Court’s ruling, the EP can prevent the EU/Canada treaty from being concluded, since it now has the power of consent over such treaties (back in 2004, the Council circumvented a separate request by the EP for the CJEU to rule on the EU/USA PNR treaty by concluding that treaty without waiting for the Court’s opinion). Furthermore, the substantive legal environment has obviously been transformed by the Court’s ruling against mass surveillance earlier this year.

The CJEU had another chance to rule on the right to privacy in the international context when the Commission asked it to rule back in 2012 whether the international Anti-Counterfeiting Agreement (ACTA) violated EU law. However, the Commission left it too late to send its request to the Court, and the EP simply vetoed that proposed agreement before the Court could rule (the Commission then withdrew its case). So we should now get a long-awaited ruling from the Court on the compatibility of international data transfers with the EU rights to privacy and data protection – unless the EP can be talked into withdrawing its request to the Court.

The procedure which the EP has invoked today is a special process which allows the Court to rule on the compatibility with EU law of a draft treaty to be concluded by the EU (or by its Member States on behalf of the EU), before that treaty comes into force. (For Canadian readers: this process is broadly similar to sending a request to the Supreme Court to rule on the constitutionality of a draft law. The EU process only applies to treaties, though.) If the CJEU rules (probably in about 18 months’ time, unless the ruling is expedited) that the draft treaty is incompatible with EU law, either the draft treaty has to be amended to comply with the Court’s ruling, or (improbably) the EU Treaties themselves have to be amended to permit its ratification.

The EU/Canada PNR treaty is distinct from the EU/Canada treaty liberalising air transport (already in force), and the proposed EU/Canada free trade agreement (CETA) – although the latter treaty, along with the EU/USA free trade agreement now being negotiated, will be indirectly impacted by a pending case in which the EU Commission has asked the CJEU to rule on whether the EU/Singapore free trade agreement is compatible with EU law.

Comments

So does the EU/Canada PNR treaty violate the right to privacy? There’s a detailed analysis of the broader impact of the data retention judgment on other EU measures in a study by Boehm and Cole, published earlier this year. So this is only a short summary of the issues discussed further in that study. The starting point is how to interpret that judgment: does it rule out all mass surveillance, or just in cases where there are insufficient safeguards? In my view, it does indeed rule out all mass surveillance where it’s linked to EU law, and any draft treaty to which the EU is party would obviously be linked to EU law.

But there’s a prior question: when does a treaty with another State entail mass surveillance? The data retention case concerned collection of data on all phone and Internet use in the EU. This could be compared to the use of social media (in the pending Facebook case), or to international banking transfers, but it’s harder to argue that collection of data on all flights to a particular third country constitutes, by itself, mass surveillance. Having said that, the proposed PNR Directive, which would apply to all flights within the EU, would probably meet the criteria.

If (contrary to my interpretation) the Digital Rights judgment does permit mass surveillance, as long as there are sufficient safeguards, then what must these safeguards be? According to the judgment, there have to be: definitions of the ‘serious crimes’ or other purposes of the data exchange; rules on the subsequent access to the data; limits on the number of people who can access that data; independent control by a court or supervisory authority; strong rules on the data protection period; provisions on protecting data from unlawful access and use; and a requirement to retain the data within the EU only. Obviously, in the context of treaties with non-EU States, the latter requirement must be understood as an obligation to retain the data in the EU or that particular third country.

Do the EU’s treaties with third States meet these criteria? This has to be assessed on a case-by-case basis. At first sight, for example, the EU/Canada PNR treaty contains provisions addressing all of these safeguards issues except one: the transfer of PNR data to other countries, which is permitted (although subject to conditions). But it might be argued that in practice, the right to privacy and data protection is not protected as strongly under such treaties as it might first appear, due to inadequacies in national legislation or practice, such as NSA access to Facebook data or limitations on non-USA citizens claiming privacy rights in the courts.

Finally, there’s an important practical question here. Let’s imagine that the CJEU rules that the proposed EU/Canada treaty violates privacy and data protection rights; or that it approves that treaty, but its reasoning in that judgment casts doubt on the compatibility of other EU treaties with those rights. How can those other treaties be challenged, now that they are already in force?

Time has run out to bring annulment actions against those treaties, or to ask the CJEU for an advance ruling on their compatibility with EU law. But it is still possible for individuals to challenge the application of those treaties via the national courts (as in the Digital Rights and Facebook cases). Or the EP could argue that in order to secure effective protection of rights under the EU Charter of Fundamental Rights, the other EU institutions must take steps to denounce the treaties concerned. If they don’t do so, the EP can sue them for ‘failure to act’ as set out in the EU Treaties.

 

Barnard & Peers: chapter 9

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Open letter on the UK's Data Retention and Investigatory Powers Bill

Tuesday 15^thJuly 2014

To all Members of Parliament,

Re: An open letter from UK internet law academic experts

On Thursday 10 July the Coalition Government (with support from the Opposition) published draft emergency legislation, the Data Retention and Investigatory Powers Bill (“DRIP”). The Bill was posited as doing no more than extending the data retention powers already in force under the EU Data Retention Directive, which was recently ruled incompatible with European human rights law by the Grand Chamber of the Court of Justice of the European Union (CJEU) in the joined cases brought by Digital Rights Ireland (C-293/12) and Seitlinger and Others (C-594/12) handed down on 8 April 2014.

In introducing the Bill to Parliament, the Home Secretary framed the legislation as a response to the CJEU’s decision on data retention, and as essential to preserve current levels of access to communications data by law enforcement and security services. The government has maintained that the Bill does not contain new powers.

On our analysis, this position is false. In fact, the Bill proposes to extend investigatory powers considerably, increasing the British government’s capabilities to access both communications data and content. The Bill will increase surveillance powers by authorising the government to;

·         compel any person or company – including internet services and telecommunications companies – outside the United Kingdom to execute an interception warrant (Clause 4(2));

·         compel persons or companies outside the United Kingdom to execute an interception warrant relating to conduct outside of the UK (Clause 4(2));

·         compel any person or company outside the UK to do anything, including complying with technical requirements, to ensure that the person or company is able, on a continuing basis, to assist the UK with interception at any time (Clause 4(6)).

·         order any person or company outside the United Kingdom to obtain, retain and disclose communications data (Clause 4(8)); and

·         order any person or company outside the United Kingdom to obtain, retain and disclose communications data relating to conduct outside the UK (Clause 4(8)).

The legislation goes far beyond simply authorising data retention in the UK. In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.

Moreover, since mass data retention by the UK falls within the scope of EU law, as it entails a derogation from the EU's e-privacy Directive (Article 15, Directive 2002/58), the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment.

Further, the bill incorporates a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive. Even if there was a real emergency relating to data retention, there is no apparent reason for this haste to be extended to the area of interception.

DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state. We urge the British Government not to fast track this legislation and instead apply full and proper parliamentary scrutiny to ensure Parliamentarians are not mislead as to what powers this Bill truly contains.

Signed,

Dr Subhajit Basu, University of Leeds

Dr Paul Bernal, University of East Anglia

Professor Ian Brown, Oxford University

Ray Corrigan, The Open University

Professor Lilian Edwards, University of Strathclyde

Dr Theodore Konstadinides, University of Surrey

Professor Chris Marsden, University of Sussex

Dr Karen Mc Cullagh, University of East Anglia

Dr. Daithí Mac Síthigh, Newcastle University

Professor David Mead, University of East Anglia

Professor Andrew Murray, London School of Economics

Professor Steve Peers, University of Essex
Julia Powles, University of Cambridge

Professor Burkhard Schafer, University of Edinburgh

Professor Lorna Woods, University of Essex

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Does the UK’s new data retention bill violate the EU Charter of Fundamental Rights?

Steve Peers

Following the judgment of the Court of Justice of the European Union (CJEU) from April this year, invalidating the EU’s data retention directive, several Member States’ courts have declared their national law invalid. However, the UK government is going in the other direction, tabling emergency legislation today in order to retain data retention powers for the UK.  

Does this proposed law fall within the scope of EU law? If so, does it violate the EU Charter of Fundamental Rights? A previous post on this blog assessed generally the question of how the judgment applies to national data retention laws, and this post applies that analysis to the specific case of the new UK bill.

First of all, according to Article 51 of the Charter as interpreted by the CJEU, there must be a link between the national law and EU law. In this case, the link is Article 15(1) of the EU’s e-privacy Directive, which specifies that Member States may restrict the rights in that Directive relating to the confidentiality of communications, location and other traffic data and caller identification:

'when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.'

The CJEU has recently confirmed that the EU Charter applies to derogations from EU law. More specifically, the CJEU has ruled repeatedly on the application of the Charter to cases where copyright holders have invoked this clause of the e-privacy Directive to justify planned restrictions upon Internet use (see most recently the Telekabel Wien judgment). So logically there is equally a link between EU law and the invocation of this clause for other purposes, most obviously in the criminal law context.

Does the proposed Bill constitute an invocation of this clause in the e-privacy Directive?  Not explicitly. But there is no legal requirement that such an express link has to be made in the national legislation concerned.

So let’s look at the wording of the Bill. Clause 1 allows the government to draw up a statutory instrument that can require ‘a public telecommunications operator to retain relevant communications data’. Clause 2(1) defines a ‘public telecommunications operator’ as ‘a person who (a) controls or provides a public telecommunication system, or (b) provides a public telecommunications service’. The Directive applies to (similarly defined) providers of a ‘public communications network’ or ‘electronic communications services’. The data being retained would be ‘traffic data’ as defined by earlier UK law, whereas the rule in the e-privacy directive also applies to traffic data. The purposes for which the data would be retained in part match those referred to in the Directive, most obviously as regards national security, crime, disorder and public safety.

So to the extent that there is a correspondence between the data being retained, the body retaining it, and the purposes for retaining it, the UK Bill will, if enacted, be linked to EU law, and therefore the EU Charter of Fundamental Rights. There will clearly be such a correspondence in many cases.

The second question is whether the new UK law would violate the Charter. To a large extent, it will be difficult to be certain on this point until the statutory instrument is proposed and adopted, since the Bill would only confer broad powers to act on the government. But Clause 1(2) of the Bill does provide that the telecoms companies might be required to collect ‘all’ data as defined by the future Act.

If that means that untargeted data might be collected, that brings us to the question of what the EU’s data retention judgment actually means. Does it ban mass surveillance in general, or simply require that such surveillance be subject to safeguards? If the latter, narrower meaning is correct, such safeguards could be provided for either in this Bill and/or in the statutory instrument.

According to the CJEU, the safeguards missing from the data retention directive were: a definition of ‘serious crime’; the purpose of subsequent access to the data; limits on the number of persons who could access the data; control of access to the data by means of a court or other independent administrative authority; stronger rules on the data retention period, for instance as regards the categories of data to be retained for the whole period, as well as the protection of the data from unlawful access and use; rules on an obligation to destroy the data; and an obligation to retain the data within the EU only.

Clause 1(4) of the Bill sets out a non-exhaustive list of certain safeguards which the government could include in a statutory instrument. This list partly, but not wholly, corresponds to the list of safeguards referred to in the CJEU judgment. In order to satisfy the CJEU, the subsequent act will have to include all of the relevant safeguards to a satisfactory standard.

But even if all such safeguards are indeed provided for, I have argued previously that the broader interpretation of the Court’s judgment is correct: no mass surveillance is possible. If that is correct, then the provision in the draft Bill to permit a requirement to collect ‘all’ data is inherently suspect, and it would certainly be a breach of EU law to require telecom providers to retain all traffic data within the scope of the e-privacy Directive without some form of further targeting.

In conclusion, much of the UK’s draft Bill would, if adopted, fall within the scope of EU law, and therefore the Charter of Rights. It is possible, depending on the future statutory instrument, that the rules, when applied, will comply with the data retention safeguards demanded by the CJEU. But the government’s intention, as manifested by the Bill, to reinstitute mass surveillance of telecoms traffic data is a clear breach of the EU Charter of Fundamental Rights.

Barnard & Peers: chapter 6, chapter 9

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Are national data retention laws within the scope of the Charter?

By Steve Peers

Following the annulment of the EU’s data retention Directive by the CJEU, an obvious important question arises: are national data retention laws subject to the same ruling of the Court? The purpose of this post is to set out the reasons why they are.

The starting point for this analysis is Article 51 of the EU’s Charter of Fundamental Rights, which states that the Charter applies to the EU institutions and other EU bodies, but to the EU’s Member States ‘only’ when they are ‘implementing’ EU law. What does that mean? 

On the narrowest interpretation, Member States ceased to be implementing EU law on data retention from the moment that the data retention Directive became invalid. After all, from that point, there was no EU data retention law to implement. However, it is arguable that Member States can still be regarded as ‘implementing’ EU law where their national legislation was introduced to implement an EU obligation. It’s a novel point, because it’s rare for the CJEU to annul EU laws on substantive grounds. And where the Court has done so, it has more often annulled only a small part of those EU laws (in the Test-Achats judgment, for instance).

But that is merely an alternative argument that the EU Charter continues to apply to national data retention law. The main argument is based on solidly established case law of the CJEU regarding the scope of EU human rights protection where Member States derogate from EU law.

EU human rights rules and national derogations from EU law

As far back as 1991, the CJEU ruled in the ERT case that where Member States derogate from EU internal market rules, they are still subject to EU human rights obligations (which then took the form only of the EU’s ‘general principles of law’, since the Charter was not yet a gleam in anyone’s eye). This was confirmed in the Familiapress judgment, as regards exceptions from the internal market rules which are based on the CJEU’s ‘rule of reason’ case law, rather than the express exceptions in the Treaties.

Does the Charter take the same approach? While many assumed that the word ‘implementing’ in the text of Article 51 suggested a narrower interpretation than under the prior case law, in its judgment in Fransson the CJEU stated that its prior case law regarding the scope of the general principles applied equally to the Charter. While that judgment did not concern derogations from EU law, the CJEU should shortly be ruling on this point in the case of Pfleger (judgment due 30th April), where the Advocate-General’s opinion assumes as much. Pending the possible confirmation in that judgment, it should be assumed for the time being that the Charter does indeed apply to national derogations from EU law, given that the CJEU made no distinction in Fransson as regards the aspects of its prior case law which were still applicable.

In any event, even if the Charter does not apply to national derogations from EU law, the general principles still do, given that they have a continued existence independent from the Charter in Article 6(3) TEU.

Applying the case law

Two further issues arise. First of all, does EU human rights law apply where Member States are not derogating from EU internal market rules in the Treaty, but from other rules of EU law? In principle it should, given that the Treaties list other EU objectives besides the creation of an internal market. Why should EU human rights rules only apply as regards national derogations from EU rules in one particular area of EU law, but not as regards derogations from EU rules in other areas of law?

Anyway, the CJEU has in effect confirmed that Member States are bound by the Charter and the general principles even where the law in question does not concern the internal market. In EP v Council and the subsequent case of Chakroun, the CJEU ruled that national derogations from the EU’s family reunion Directive had to comply with human rights obligations, without suggesting any distinction in this regard between national derogations from EU internal market rules in the Treaty and national derogations from other EU rules set out in EU legislation.

Secondly, is there an EU law rule that Member States are derogating from when they continue to apply national data retention laws? Indeed, there is: Article 15(1) of the EU’s e-privacy Directive specifies that Member States may restrict the rights in that Directive relating to the confidentiality of communications, location and other traffic data and caller identification:

'when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.'

In fact, the CJEU has ruled repeatedly on the application of the Charter to cases where copyright holders have invoked this clause to justify planned restrictions upon Internet use (see most recently the Telekabel Wien judgment). There is no reason why the CJEU would not also apply the clause to data retention on crime-fighting grounds, given that the second sentence of Article 15(1) refers expressly to data retention and the first sentence refers expressly to criminal law.

Finally, while some forms of data retention might fall outside the scope of the e-privacy Directive, which in principle applies to telecommunications service providers (not, for instance, to social networks or search engines), those other forms of data retention would anyway fall within the scope of the similar Article 13 of the main data protection Directive, given that they would clearly constitute the processing of personal data within the scope of that Directive. Neither the ‘household exception’ to that Directive nor the exception for processing in the field of criminal law would apply – since the data retention would be taking place in the context of a commercial activity (since the judgment on the legal base of the data retention Directive by analogy).


Barnard & Peers: chapter 6, chapter 9

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The data retention judgment: The CJEU prohibits mass surveillance

Steve Peers

On July 7, 2005 a relative of mine started her journey to work on a London tube train. Within half an hour, bombs on that train left by terrorists exploded, in conjunction with three other bombs across London. Dozens of people died (although my relative was not injured).

Understandably, public concern about terrorist incidents, following on from the earlier outrages of 9/11 and the Madrid bombings, led to further EU anti-terrorist legislation. In particular, the British Presidency of the EU Council made it a top priority to adopt legislation providing for retention of a large amount of communications data. But according to the Court of Justice of the European Union (CJEU), in a crucial judgment today, that legislation was essentially an over-reaction to these terrorist atrocities. The Court has effectively prohibited mass surveillance in the EU, and thus taken significant steps to entrench itself as the EU’s constitutional court.

Summary of the judgment

As discussed in detail by Chris Jones’ post on this blog, the Directive requires Member States to require telecommunications service providers to retain significant amounts of data on the use of all forms of telecommunications by all individuals within the EU, for a period of between 6 months and 2 years. This data is collected for the use of law enforcement agencies as regards investigations into serious crime or terrorism, but there are no detailed rules in the Directive governing the access to and use of the data by those authorities. The CJEU only found it necessary to address the question of the validity on the Directive in light of the Charter rights to privacy and data protection (Articles 7 and 8 of the Charter).

First of all, the Court unsurprisingly had no difficulty finding that the Directive interfered with the protection of those two rights. Its analysis focussed instead on whether such an interference could be justified.

The rules on justifying interferences with Charter rights are set out in Article 52 of the Charter. Any limitation upon Charter rights must be laid down by law, respect the essence of the right, and subject to the principle of proportionality, limit rights and freedoms only if it is necessary and genuinely meets public interest objectives and the rights and freedoms of others. The Court easily found that there was a public interest justification (public safety) for the restriction of the Charter rights at issue. It also found that the ‘essence’ of the rights was not affected, because (as regards the right to privacy) the content of communications was not recorded, and (as regards the right to data protection) certain data processing and data security rules had to be respected.

Therefore the key issues in the Court’s ruling were the proportionality of the interference with Charter rights. The Court indicated that judicial review of the EU legislature’s discretion should be ‘strict’ in this case, applying factors such as the area of law concerned, the nature of the right, the nature and seriousness of the infringement and the objective pursued. Here, it followed from the nature of the right and the nature and seriousness of the infringement that the EU legislature’s discretion was reduced; the CJEU took no account expressly of the objective being pursued.

The first aspect of proportionality (the appropriateness of the interference with the right for obtaining the objective) was fulfilled, because the data concerned might be useful to investigations. However, the CJEU found that the Directive was problematic as regards the second facet: the necessity of the measure in question. Crucially the Court ruled that the important objective of investigating serious crime and terrorism did ‘not, in itself’ justify data retention. So for the CJEU, the safety of the people is not the supreme law.

Its analysis proceeded by setting out the general importance of safeguards as regards the protection of privacy and data protection rights (building upon the case law of the European Court of Human Rights). These safeguards are even more necessary when data is processed automatically, with a risk of unlawful access.

 Applying this test, the Court gave three reasons why the rules on data retention in the Directive were not strictly necessary. First of all, the Directive had an extremely broad scope, given that it applied to all means of electronic communication, which have ‘widespread and growing importance’ in everyday life, without being sufficiently targeted. Indeed, it ‘entails an interference with the fundamental rights of practically the entire European population’. In other words (the Court does not use the term), it amounts to mass surveillance.

Secondly, besides the ‘general absence of limits’ in the Directive, it failed to limit access to the data concerned by law enforcement authorities, and the subsequent use of that data, sufficiently precisely. In particular: it referred generally to ‘serious crime’ as defined in national law; it did not restrict the purpose of subsequent access to that data; it did not limit the number of persons who could access the data; and it did not control access to the data by means of a court or other independent administrative authority.

Thirdly, the Directive did not set out sufficient safeguards, as regards: the data retention period, for instance as regards the categories of data to be retained for the whole period; the protection of the data from unlawful access and use (here the CJEU criticises the possible limits on protection measures due to reasons of cost); the absence of an obligation to destroy the data; and the omission of a requirement to retain the data within the EU only.

Comments

The CJEU reached the same conclusion as the Advocate-General’s opinion, but for different reasons. In the Advocate-General’s view, the Directive was invalid because it breached the ‘quality of law’ requirement applicable to interferences with Charter rights, having failed to establish sufficient safeguards relating to access to and use of the data. It also was disproportionate for failing to explain why storage periods of up to two years were necessary. The Court’s ruling appears to go further, by ruling out mass surveillance in principle.

The opinion discussed some interesting and important issues that the Court does not directly address, in particular: the existence of a ‘quality of law’ requirement as regards breaches of the Charter; whether the EU or the Member States have responsibility for ensuring the satisfaction of that requirement in this case; and the complications of the ‘legal base’ issue, ie the awkward point that inserting safeguards relating to law enforcement authorities might go beyond the ‘internal market’ legal base of the legislation. It might be deduced that the CJEU has a view on these issues: there is a ‘quality of law’ rule; the EU is responsible for upholding that requirement in this case; and the ‘legal base’ point is not a barrier to the EU adoption of rules regulating law enforcement authorities. But unfortunately, the Court did not expressly spell out its reasoning on these issues. It is certainly peculiar that, having ruled previously that the Directive was validly based on EU internal market powers, the CJEU rules here that its interference with Charter rights is justified by the objective of public safety.

As for the reasoning which the Court did provide, as usual it was easy to find public interest objectives for the interference with rights. The most important part of the reasoning is therefore the analysis of the interference with the ‘essence’ of the right, and of proportionality. It is very significant that the Court makes clear that these are two different issues: even if the essence of a right is respected, legislation can be disproportionate. Earlier case law on restriction of rights often seemed to suggest that respecting the essence of rights was sufficient.

Another important aspect of the judgment is the development of a doctrine indicating when strict scrutiny of the EU legislature’s interference with fundamental rights should apply. This is based upon Strasbourg case law, not the standards of national constitutional courts, which have of course addressed this issue in their own way. Obvious questions arise as to whether the same standards should apply to national implementation of EU law, or to Charter rights not based upon the ECHR.

While many data protection specialists argue that there is a fundamental distinction between the right to privacy and the right to data protection, the Court’s judgment only reflects that distinction to a limited degree. It assesses separately whether there is an interference with Articles 7 and 8 of the Charter, and whether the essence of each right has been affected. However, it made no distinction between the rights when assessing the required intensity of judicial review, and linked the two rights together when assessing the proportionality of the interference with them.

Consequences of the judgment

First and foremost, the data retention Directive is entirely invalid. The Court did not in any way rule that it could continue in force. So the immediate consequence is that we return to the status quo before 2005. This means that Member States have an option, not an obligation, to retain data pursuant to the e-privacy Directive (see further Chris Jones’ post on the background to the data retention Directive). However, Member States’ exercise of this option will still be subject to the requirements set out in this judgment, since their actions will fall within the scope of the Charter, given that the e-privacy Directive regulates the issue of interference with telecommunications.

Would it be possible for the EU to adopt a new Directive on mandatory data retention? In other words, can the Directive in some way be ‘fixed’?

First of all, since the 2006 Directive is entirely invalid, the EU legislature has to start from scratch, rather than amend it. Secondly, it is clear from the Court’s judgment that some form of mandatory data retention in order to combat serious crime and terrorism is acceptable from the perspective of the EU Charter.

How would such a new Directive differ from the measure the Court has just struck down? The Court sets out unusually detailed guidelines for the legislature (and, in the meantime, for national legislature) in its judgment. First of all, any new Directive would have to be in some sense targeted upon communication which has a particular link with serious crime and terrorism. Very simply, mass surveillance is an unjustifiable infringement of Charter rights.

Secondly, a new Directive would have to contain rules on: the definition of ‘serious crime’; the purpose of subsequent access to the data; limits on the number of persons who could access the data; and control of access to the data by means of a court or other independent administrative authority.

Thirdly, the new Directive would have to include stronger rules on the data retention period, for instance as regards the categories of data to be retained for the whole period, as well as the protection of the data from unlawful access and use. It would also have to contain rules on the absence of an obligation to destroy the data, and require that data be retained within the EU only. The Court did not rule on whether subsequent processing of the data in third States would be acceptable, but logically there must be some rules on this issue too. Probably it would be simplest to extend the external processing rules in the main EU data protection legislation to this issue.

Depending on the timing of a proposal for a new Directive (assuming that there is one), it might possibly get mixed up with the conclusion of negotiations over main the main data protection package being negotiated by the EU institutions. Alternatively, if those negotiations have concluded, they will establish a template that the negotiation of the new Directive can take account of.

Final comments

The Court’s judgment can be seen in the broader context of continued revelations about mass surveillance. Its reference to the retention of data by third States is a thinly-disguised allusion to the spying scandals emanating from the United States. It also responds, sotto voce, to the very great concerns of national constitutional courts about this Directive, discussed in detail in Chris Jones’ post on this issue.

More broadly, the CJEU has seized the chance to give an ‘iconic’ judgment on the protection of human rights in the EU legal order. Time will deal whether the Digital Rights judgment is seen as the EU’s equivalent of classic civil rights judgments of the US Supreme Court, on the desegregation of schools (Brown) or criminal suspects’ rights (Miranda). If the Charter ultimately contributes to the development of a ‘constitutional patriotism’ in the European Union, this judgment will be one of its foundations.


Barnard & Peers: chapter 9, chapter 25

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National legal challenges to the Data Retention Directive

Chris Jones, Researcher for Statewatch

This post, which examines the numerous legal challenges against the EU's Data Retention Directive at both national and EU level (not including today's judgment), is the third post in a series examining the EU's mandatory data retention legislation, which was struck down today by the Court of Justice of the European Union (CJEU). It is based on work undertaken by Statewatch as part of the SECILE project (Securing Europe through Counter-terrorism: Impact, Legitimacy and Effectiveness).

 EU Court of Justice legal basis challenge

The first legal challenge to the Data Retention Directive came when Ireland, supported by Slovakia, asked the EU Court of Justice to annul the Directive on the grounds that it had the wrong legal basis. They argued that the correct legal basis for data retention resided “in the provisions of the EU Treaty concerning police and judicial cooperation in criminal matters,” rather than those on the internal market. The ECJ dismissed the case in February 2009, stating that: “Directive 2006/24… regulates operations which are independent of the implementation of any police and judicial cooperation in criminal matters. It harmonises neither the issue of access to data by the competent national law-enforcement authorities nor that relating to the use and exchange of those data between those authorities… “It follows that the substantive content of Directive 2006/24 is directed essentially at the activities of the service provides in the relevant sector of the internal market, to the exclusion of State activities coming under Title VI of the EU Treaty".

Bulgaria

The first ruling on national laws transposing the Directive came from Bulgaria in proceedings launched by the NGO Access to Information Program. In December 2008 the country’s Supreme Administrative Court annulled an article of the transposing legislation permitting the Ministry of Interior “passive access through a computer terminal” to retained data, as well as providing access without judicial permission to “security services and other law enforcement bodies”. The court found that: “[T]he provision did not set any limitations with regard to the data access by a computer terminal and did not provide for any guarantees for the protection of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian Constitution. No mechanism was established for the respect of the constitutionally granted right of protection against unlawful interference in one’s private or family affairs and against encroachments on one’s honour, dignity and reputation.” The court also found the legislation failed to make reference to other relevant laws – the Penal Procedure Code, the Special Surveillance Means Act and the Personal Data Protection Act – “which specify conditions under which access to personal data shall be granted.”

Hungary

In June 2008 the Hungarian Civil Liberties Union (HCLU or TASZ, Társaság a Szabadságjogkért) requested “the ex-post examination” by the Hungarian Constitutional Court of the amendment of Act C of 2003 on electronic communications, “for unconstitutionality and the annulment of the data retention provisions.” According to the HCLU, Act C “already comprised numerous restrictive data retention provisions prior to the directive. The only changes brought in by the amendments were the retention of Internet communications data and the elimination of the lax – but at least pre-defined – legal purposes of the data processing”. The HCLU argued that “the amendments completely disregarded the provisions of the directive [stating] that data should be ‘available for the purpose of investigation, detection and prosecution of serious crimes’.” Despite being filed in 2008, the case is yet to be heard. According to Fanny Hidvégi of the HCLU, this is because as of 1 January 2012 new restrictions were placed on submitting cases to the Constitutional Court, and “every pending case submitted by a person or institution which no longer has the right to do so were automatically terminated”. The HCLU has begun a new and lengthy procedure that requires the exhaustion of all other remedies before the Constitutional Court can examine the Hungarian data retention measures.

Romania

In October 2009, the Romanian Constitutional Court found that proposed national legislation implementing the Data Retention Directive violated Romanian constitutional provisions protecting freedom of movement; the right to intimate, private and family life; secrecy of correspondence; and freedom of expression. The court found that the government’s attempt to justify the mandatory retention of telecommunications data by invoking undefined “threats to national security” was unlawful. The Court also referred to the 1978 ECHR ruling in Klass v Germany, which stated that “taking surveillance measures without adequate and sufficient safeguards can lead to ‘destroying democracy on the ground of defending it’.”

 In October 2011 the European Commission asked the Romanian government to bring forward new laws transposing the Directive, issuing a “reasoned opinion” under Article 258 of the TFEU, which carries the threat of full infringement proceedings at the European Court of Justice if the request is not met. A new law was duly drafted, but was rejected by the Romanian Senate. The law was heavily criticised in the media prior to the vote and the country’s Data Protection Authority had refused to endorse it, claiming that articles relating to the security services were “still vague”. Civil society organisations also opposed it and even the government refused to sponsor it, leaving the Minister of Communications and Information Society to propose it in his role as MP rather than minister. Strong support from the Minister of European Affairs fuelled criticism that it was motivated solely by the need to escape sanction by the European Court of Justice.

Ultimately the Senate vote was not decisive and the law continued its journey to the Chamber of Deputies, where at the end of May 2012 it was adopted with 197 votes for and 18 against, with many abstentions amongst the 332 deputies. There was no substantive discussion of fundamental rights issues in the Chamber of Deputies or the main two committees that debated the law and critics have argued that the provisions on access to retained data are even more problematic than the original statute. On 21 February 2013 the European Commission withdrew the infringement procedure that it had opened in 2011.

Cyprus

In February 2011 the Supreme Court of Cyprus ruled that aspects of the national transposing legislation breached the Cypriot constitution and case law on surveillance. The case was brought by individuals whose telecommunications data had been disclosed to the police in accordance with District Court orders. They argued that the laws underlying the orders were based (Articles 4 and 5 of Law 183(I) 2007, that sought to harmonise Cypriot law with the Directive), and therefore the District Court orders themselves violated their rights to privacy and confidentiality of communications. The Supreme Court found that petitioners had indeed been subject to a violation of their rights and annulled provisions it said went beyond the requirements of the Data Retention Directive. However, the legality of the Directive itself was not called into question.

Germany

Legislation transposing the Data Retention Directive into the Telecommunication Act and Code of Criminal Procedure was passed by the Bundestag on 9 November 2007 and entered into force on 1 January 2008. The day before, 31 December 2007, 35,000 German citizens (represented by the NGO AK Vorrat) filed a complaint against the legislation at the Federal Constitutional Court. On 2 March 2010 the Court ruled that the transposing provisions were a disproportionate interference with Article 10 (confidentiality of communications) of the Basic Law (Grundgesetz), and contravened legal standards on purpose limitation, data security, transparency and legal remedies.

However, the Court made no ruling on the actual Directive, stating that data retention is in principle proportionate to the aim of investigating serious crime and preventing imminent threats against life, body, freedom of persons, and the existence and security of the Federal Republic or one of its states. The Court found that the new domestic law failed to comply with legal standards on purpose limitation (restrictions on use of the retained data), data security, transparency and legal remedies.

In January 2011 the Ministry of Justice (MoJ) presented a paper proposing an alternative to data retention – a “quick freeze” system of limited data preservation for criminal investigations. The police and/or public prosecutors would issue a “quick freeze” order seeking access to metadata already held by telecommunications providers, for example for billing purposes. To actually access the “frozen”’ data would require the approval of a judge. In addition, the MoJ proposed an obligation for ISPs to store internet traffic data for seven days, allowing criminal investigators to identify persons behind (already known) IP addresses in particular in cases of child pornography. Criminal investigators would request the traffic and communications data via service providers without having direct access to these traffic data. This paper reflected proposals made in June 2010 by the Federal Commissioner for Data Protection, as well as the suggestions of more pragmatic privacy advocates.

More radical activists claim that any mandatory storage of communications data should be prohibited. The Interior Ministry rejected these proposals and insisted on full implementation of the Directive, arguing that the Constitutional Court had already shown that it is possible to implement the Directive and ensure individual privacy through high data security standards, including encryption and the “four eyes principle” (approval by at least two people) as prerequisite for accessing data and log files; strict purpose limitation; and the protection of professions whose confidentiality must be ensured.

The MoJ produced a “quick freeze” bill in April 2012 but continued opposition from the Interior Ministry meant that it was never tabled in Parliament. The Interior Ministry was unhappy with the length of the proposed freezing periods, demanding three months instead of the one month suggested by the Ministry of Justice. Moreover, the Interior Ministry wanted to include crimes such as fraud and hacking. The controversy continues and no new legislation has yet been introduced.

By this time the European Commission had initiated infringement proceedings and took its case to the European Court of Justice in July 2012. The Commission is seeking to impose a daily fine of €315,000.

Czech Republic

On 13 March 2011 the Czech Republic's Constitutional Court declared national legislation implementing the Directive unconstitutional. It found that the retention period exceeded the requirements of the Directive, and that use of the data was not restricted to cases of serious crime and terrorism. “The national legislation lacked, according to the constitutional court, clear and detailed rules for the protection of personal data as well as the obligation to inform the person whose data has been requested.” As in Germany, the Court stated that it could not review the Directive itself, but noted there was nothing in principle preventing implementation in conformity with constitutional law.

A second Constitutional Court decision in December 2011 examined the procedures put in place for obtaining access to retained data and found the “procedure in question to be too vague, in breach of [the] proportionality rule (its second step) and thus unconstitutional due to interference with right to privacy and informational self-determination.” In the meantime the Czech government revised the implementing legislation with modifications that took account of the judgment.The NGO Iuridicum Remedium has lodged fresh proceedings against the revised legislation on the grounds that regulation remains inadequate and that the new decree could provide for the “monitoring of contents of Internet communications”.

Slovakia

In August 2012 a group of Slovakian MPs, supported by the European Information Society Institute, lodged a legal complaint against the legislation implementing the Data Directive. The complaint asks the Slovak Constitutional Court to examine whether the laws implementing the Directive and dealing with access by the authorities to retained data are compatible with constitutional provisions on proportionality, the rights to privacy and data protection, and the provision granting freedom of speech. It also argues that the measures infringe provisions guaranteeing privacy, data protection and freedom of expression in Slovakian human rights law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The complaint has not yet been resolved.

Sweden

The European Commission has engaged in a lengthy battle to try to bring Sweden’s domestic legislation into line with the Directive. After the country missed the initial September 2007 deadline, the Commission brought infringement proceedings, with the European Court of Justice finding Sweden guilty of failing to fulfil its obligations in February 2010. A proposal for transposing legislation was put forward in December 2010 and adopted in March 2012. The new law should have taken effect in May 2012 but despite an overwhelming vote in favour of the new measures in the Swedish parliament (233 MPs voted in favour with 41 against and 19 abstaining), the Left Party and the Greens invoked a constitutional provision allowing the entry into force of new measures to be delayed by a motion of one sixth of the parliament's members.

In May 2013, the European Court of Justice ordered Sweden to pay a €3 million fine for its delay in implementing the legislation. The Court rejected Swedish pleas regarding the domestic controversy over the implementation of the law: “As the Court has repeatedly emphasised, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under European Union law... The same is true of a decision, such as the one made by the Swedish Parliament, to which paragraph 8 of this judgment makes reference, to postpone for a year the adoption of the draft bill intended to transpose that directive.”

The Court of Justice of the European Union (CJEU)

The most serious challenge to the implementation of the Data Retention Directive has come from joined cases brought by the NGO Digital Rights and the plaintiffs in a case referred from the Austrian Constitutional Court. The Advocate General's opinion on the case, published in December 2013 following a hearing in July, proposed that the Court declare the Directive as a whole incompatible with EU Charter articles 52(1) (limitations on rights “must be provided for by law and respect the essence of those rights and freedoms”) and 7 (right to privacy). The case focuses on the compatibility of the Directive with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the European Union Charter of Fundamental Rights. At the hearing the representatives of those who brought the cases argued that the Directive is fundamentally incompatible with the Charter and that there is still no evidence to demonstrate that its necessity or proportionality.

On behalf of Austrian privacy group AK Vorrat, Edward Scheucher argued that: “[T]he cumulative effect of fundamental rights restrictions need to be taken into consideration when judging the legitimacy of a single measure. Given the revelations regarding PRISM, this cumulative effect now clearly provides a different result [than] at the time when the German [Constitutional] Court took its decision [to annul certain provisions of German transposing legislation]. Furthermore, he stated that the Austrian implementation of the directive clearly showed that a Charter-compatible national implementation of the Data Retention Directive is not possible. This argument is bolstered by the fact that the main author of the Austrian implementation is among the 11,139 Austrian plaintiffs who challenged data retention before the Austrian Constitutional Court."

In response to requests for evidence demonstrating the necessity of the Directive, the Austrian and Irish governments presented new statistics on the use of retained data at the hearing. Also arguing in favour of the Directive were representatives of Italy, Spain and the UK, as well as the Commission, the Council and the Parliament. However, the Directive’s advocates still “had to acknowledge a lack of statistical evidence”, with the UK admitting that “there was no ‘scientific data’ to underpin the need” for data retention. Judge Thomas von Danwitz, the Court’s main rapporteur for the hearing, asked for information that had led to the adoption of the Directive in 2006, given that “the Commission in 2008 claimed not to have enough information for a sound review”. The Council’s lawyers, meanwhile, “implored the Court not to take away instruments from law enforcement”.

 Ultimately, Advocate-General Cruz Villalón concluded that the Court answer the cases in the following way: “(1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directivecontains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use. “(2) Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years.”

Today's Grand Chamber judgment, which is analysed in Steve Peers' separate post, ultimately agreed with this recommendation. The EU has finally been forced to redraft its mandatory data retention rules.


 Barnard & Peers: chapter 9, chapter 25

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Content and implementation of the Data Retention Directive

By Chris Jones, Statewatch researcher

This is the second in a series of posts examining the EU's Data Retention Directive, which is the subject of today's judgment of the Court of Justice of the European Union (CJEU). It is based on work undertaken by Statewatch as part of the SECILE project (Securing Europe through Counter-terrorism: Impact, Legitimacy and Effectiveness).

The post begins with an article-by-article examination of the Directive and subsequently examines the troubled national transposition and review process overseen by the European Commission. The first post examined the background to the Directive, and a subsequent, final post will look at national court cases challenging the implementation of the Directive.

The Directive, clause-by-clause

Article 1 sets out the subject matter and scope of the Directive, which covers all legal entities and: “[A]ims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.”

Article 1(1) of the Directive states that serious crime is “as defined by each Member State in its national law”. Article 1(2) states that the Directive does not apply to the retention of the content of communications. However, it has long been argued that “retaining [internet] traffic data makes it possible to reveal… what websites people have visited”, indicating that certain content data can be retained under the Directive. The EU’s Article 29 Working Party on data protection issued an Opinion in 2008 making clear that the Directive is “not applicable to search engine providers”, as “search queries themselves would be considered content rather than traffic data and the Directive would therefore not justify their retention.”

Article 2 contains definitions. Article 3 outlines the obligation for telecoms providers to retain data, through derogation from a number of Articles (5, 6 and 9) of the e-Privacy Directive. Article 5 of that Directive obliges Member States to: “[E]nsure the confidentially of communications and the related traffic data by means of a public communications network and publicly available electronic communications services” through the prohibition, except when legally authorised, of “listening, tapping, storage or other kinds of interception or surveillance.” Article 6 of the e-Privacy Directive prohibits the retention by telecommunications providers of “traffic data relating to subscribers and users” except if necessary for billing or marketing and with the users' consent. Article 9 states that location data relating to users or subscribers “may only be processed when they are made anonymous, or with the consent of the users of subscribers to the extent and for the duration necessary for the provision of a value added service.”

Article 4 of the Data Retention Directive covers access by Member States’ competent authorities to retained data, which should only occur “in specific cases and in accordance with national law”. The phrase “competent authorities” is undefined in the Directive. Member States decide which of their agencies and institutions can request and access retained data. Member States also define the procedures authorities should follow to get access to retained data. This has led to wide divergence between Member States in which authorities can access retained data, and how they do so. The Directive also fails to stipulate that national law should include judicial scrutiny of requests for retained data, allowing Member States to establish self-regulatory systems that dispense with traditional surveillance “warrants”.

Article 5 lists in detail the data that must be retained by service providers:

The source of a communication;
The destination of a communication;
The date, time and duration of a communication;
The type of a communication;
Users’ communication equipment or what purports to be their equipment; and
The location of mobile communication equipment.

Article 6 covers periods of retention (“not less than six months and not more than two years from the date of the communication”). Article 7 outlines measures for the protection and security of retained data, compliance with which is to be supervised by “one or more public authorities” in accordance with Article 9.

Article 8 states that the storage of retained data must allow for its transmission to competent authorities, when requested, “without undue delay”. Article 10 obliges Member States to provide annual statistics to the Commission. Article 11 makes an amendment to Article 15 of the e-Privacy Directive, paragraph 1 of which permits Member States to enact their own data retention measures if they consider them: “[A] necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system.”

The Data Retention Directive supplemented this by stating that: “Paragraph 1 shall not apply to data specifically required by [the Data Retention Directive] to be retained for the purposes referred to in Article 1(1) of that Directive.” This legislative overlap has been problematic and the European Commission, which is reviewing the Data Retention and e-Privacy Directives in parallel, has suggested that: “Any revision of the Data Retention Directive should ensure that retained data will be used exclusively for the purposes foreseen in this Directive, and not for other purposes as currently allowed by the e-Privacy Directive.”

Article 12 permits Member States to extend retention for “a limited period” if they face “particular circumstances”, subject to the post-facto approval of the Commission. Article 13 obliges Member States to ensure that provisions of EU data protection law dealing with judicial remedies, liabilities and sanctions apply to Member States' transposing measures. It also requires the punishment by “penalties, including administrative or criminal penalties, that are effective, proportionate and dissuasive,” of any illegal access to or transfer of retained data.

Article 14 obliged the Commission to undertake “an evaluation of the application of this Directive and its impact on economic operators and consumers” and present it to the European Parliament and the Council (see further below). Article 14 also obliged the Commission to determine at this time “whether it is necessary to amend the provisions of this Directive”, a decision that the Commission has deferred, leaving no precise timetable for a new proposal. 

Articles 15-17 require Member States to transpose the Directive into national law by 15 September 2007. Article 15(3) allows Member States to “postpone application of this Directive to the retention of communications data relating to Internet Access, Internet telephony and Internet e-mail” for up to three years. Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, Germany, Greece, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the UK all took up this option. The national legislation through which Member States transposed the Directive is listed in the EUR-Lex register.

Transposition and review

Nearly seven years after the deadline for implementation, the Directive has still not been implemented by all the states it covers and genuine “harmonisation” appears a remote prospect. Even with the extra room for manoeuvre on internet data retention, six Member States still found themselves subjected to infringement proceedings brought by the Commission after failing to implement national legislation on time.

The Commission brought proceedings against Austria, the Netherlands and Sweden in May 2009, Greece and Ireland in November 2009, and Germany in May 2012. Austria, Greece, the Netherlands, Ireland and Sweden subsequently adopted legislation; Germany has failed to do so and an infringement action is pending at the European Court of Justice. In Norway (obliged to implement the Directive through membership of the European Economic Area) legislation is yet to be agreed by parliament, and there is an on-going campaign by civil society organisations against it. The Commission recently demanded that Belgium “change its data retention laws to comply with the provisions of the European legislation”, and a draft bill aimed at ensuring full implementation was introduced into the Belgian Parliament in July 2013.

The Commission's evaluation of the Directive, due in September 2010, was eventually published in April 2011. It concluded that: “[D]ata retention is a valuable tool for criminal justice systems and for law enforcement in the EU. The contribution of the Directive to the harmonisation of data retention has been limited, in terms of, for example, purpose limitation and retention periods, and also in the area of reimbursement of costs incurred by operators, which is outside its scope.”

Retention period and scope

That the Directive failed to harmonise retention periods is hardly surprising – it allowed Member States to choose from anywhere between 6 and 24 months. The failure of the Directive to define “serious crime” also led to wide divergences across Member States: “Ten Member States (Bulgaria, Estonia, Ireland, Greece, Spain, Lithuania, Luxembourg, Hungary, Netherlands, Finland) have defined ‘serious crime’, with reference to a minimum prison sentence, to the possibility of a custodial sentence being imposed, or to a list of criminal offences defined elsewhere in national legislation. Eight Member States (Belgium, Denmark, France, Italy, Latvia, Poland, Slovakia, Slovenia) require data to be retained not only for investigation, detection and prosecution in relation to serious crime, but also in relation to all criminal offences and for crime prevention, or on general grounds of national or state and/or public security. The legislation of four Member States (Cyprus, Malta, Portugal, UK) refers to ‘serious crime’ or ‘serious offence’ without defining it.”

Most Member States also “allow the access and use of retained data for purposes going beyond those covered by the Directive, including preventing and combating crime generally and the risk of life and limb”.

Access to retained data

The authorities permitted to access retained data differ significantly from state to state. Every Member State allows police access and all except the UK and Ireland give access to prosecutors. 14 states provide access to security and intelligence agencies (only 12 are easily identifiable in the report – Bulgaria, Estonia, Spain, Latvia, Lithuania, Luxembourg, Hungary, Malta, Poland, Portugal, Slovenia and the UK). Six (Finland, Hungary, Ireland, Poland, Spain, UK) give access to tax and/or customs authorities; and four to border police (Estonia, Finland, Poland, Portugal). The UK allows other public authorities access to data retained if “authorised for specific purposes under secondary legislation.”

The type of authorisation required for access is also uneven: “Eleven Member States require judicial authorisation for each request for access to retained data. In three Member States judicial authorisation is required in most cases,” but the information provided in the report is not specific enough to allow identification of these states. A senior authority, but not a judge, must give authorisation in four other Member States (five Member States' information – Cyprus, France, Hungary, Italy, Poland – appears to fit this description). In two Member States, “the only condition appears to be that the request is made in writing,” although the information provided indicates that three states have such systems: Ireland, Malta and Slovakia.

Legitimacy and effectiveness

The Commission has acknowledged that many groups and individuals consider mandatory data retention “in principle… unjustified and unnecessary”. Nevertheless, EU Home Affairs Commissioner Cecilia Malmström has stated that “data retention is here to stay”. This has not allayed concerns about either the legitimacy or effectiveness of the Directive. In May 2011 the European Data Protection Supervisor issued a formal Opinion on the Commission’s evaluation report. Amongst other things, he said, the Commission needed to “invest in collecting further practical evidence from the Member States in order to demonstrate the necessity of data retention as a measure under EU law”, and that all those Member States in favour of data retention should prove “quantitative and qualitative evidence” demonstrating its necessity.

In December 2011 the European Commission wrote to the EU Council’s Working Party on Data Protection and Information Exchange (DAPIX) to inform Member States’ representatives of the results of the consultation that informed its April 2012 evaluation report. The Commission argued that it was necessary to “explain better the value of data retention” due to “a continued perception that there is little evidence at an EU and national level on the value of data retention in terms of public security and criminal justice”: “We have received strong views from law enforcement and the judiciary from all Member States that communications data are crucial for criminal investigations and trials, and that it was essential to guarantee that these data would be available if needed for at least 6 months or at least… 1 year. We have also received strong qualitative evidence of the value of historic communications data in specific cases of terrorism, serious crime and crimes using the internet or by telephone – but only from 11 out of 27 Member States.” Furthermore, “[t]he statistics required under Article 10 do not, as it is currently interpreted, enable evaluation of necessity and effectiveness”. Therefore, the Commission concluded, “all Member States – not just a minority – need to provide convincing evidence of the value of data retention of security and criminal justice”.

Member States’ delegations in DAPIX had already discussed the need for further evidence of the “necessity” of mandatory data retention at a meeting in May 2011. They concluded that retention: “[C]ould not be argued on the basis of statistical data… the gravity of the offences investigated thanks to traffic data, rather than the mere number of cases in which traffic data were used should receive due attention. Quantitative analysis should be complemented with qualitative assessment."

In March 2013 the Commission published a report that attempted to draw together “[e]vidence which has been supplied by Member States and Europol in order to demonstrate the value to criminal investigation and prosecution of communications data retained under Directive 2006/24/EC.” The report contains an overview of the ways in which communications data are used in criminal investigations and judicial proceedings; the sorts of cases in which retained data are important; the “consequences of absence of data retention”; and a section on statistics and quantitative data. This notes that 23 Member States have provided “some statistics since 2008”, but that they “interpret in different ways terms from the DRD such as ‘case’ and ‘request’, and statistics vary in format which limits their comparability”. However, what the statistics do show is massive variation in the extent that Member States are using their data retention powers, with total annual requests ranging from 23 (Portugal) to 777,040 (UK).

In November 2012 – six years after the adoption of the Directive – the Commission adopted and disseminated “more comprehensive guidance on provision of statistics under Article 10”. Such problems meant that the majority of the Commission's March 2013 report (20 of 30 pages) was given over to anecdotal evidence, including 91 reported cases from across Europe in which retained data assisted in finding the perpetrators of a variety of serious crime.

Alternative approaches

“Data preservation” regimes offer an alternative to data retention, by limiting retention of data to specific authorised investigations. In November 2012 the European Commission published a report it had commissioned on “current approaches to data preservation in EU Member States and third countries”. Data preservation was defined as the “expedited preservation of stored data or ‘quick freeze’” in: “[S]ituations where a person or organisation (which may be a communications service provider or any physical or legal person who has the possession or control of the specified computer data) is required by a state authority to preserve specified data from loss or modification for a specific period of time”.

The report explained that data preservation is already mandated by the Council of Europe Convention on Cybercrime (the Budapest Convention), which entered into force on 1 July 2004 and is open for worldwide signature. All EU Member States have signed the Convention although Greece, Ireland, Luxembourg, Poland and Sweden still need to ratify it (as of 7 April 2014). Under the Convention data may be preserved “for the purpose of specific criminal investigations or proceedings”.

The Convention, unlike the Data Retention Directive, explicitly permits the storage of communication content. While the German Ministry of Justice believes that data preservation is fundamentally an alternative to mandatory retention, the report concludes that: “[D]ata retention and data preservation are complementary rather than alternative instruments… data retention plays a role in ensuring that data is kept and that this is sometimes a prerequisite for data preservation, as data may have already been deleted before a data preservation order is issued.”

Revision of the Directive

Article 14 requires the European Commission to determine, on the basis of its review, whether it is necessary to amend the provisions of the Data Retention Directive. In August 2012 the Commission announced that it was postponing the revision of the Data Retention Directive with “no precise timetable” for a new proposal. The Commission spokesperson cited the need to review the “e-Privacy” Directive to “ensure that retained data will be used exclusively for the purposes foreseen in this Directive, and not for other purposes as currently allowed by the e-Privacy Directive.”

Before the revision of either of these two Directives takes place, the Commission wants to see its draft data protection package agreed by the Council and the Parliament. At present the two institutions disagree significantly on the proposal, with further disagreement amongst the Member States in the Council. However, more fundamental to the future of the Directive may be today's judgment of the European Court of Justice.


Barnard & Peers: chapter 9, chapter 25

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