EU Data Retention Directive Said Vulnerable to Challenge on Human Rights Grounds
Legislation mandating storage of Internet and telephone traffic data was founded on the correct legal basis, the European Court of Justice (ECJ) ruled Tuesday. It tossed out a challenge to the EU data retention directive by Ireland and Slovakia, saying the measure relates to internal market, not police matters, as the two governments claimed. Digital rights activists said they're confident the controversial directive will still be struck down on human rights grounds.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Ireland and the Slovak Republic immediately contested the directive in the ECJ after it was approved in 2006. They said because its main objective is to ease investigation and prosecution of crime, it should have been based on the European Union Treaty, not the European Community Treaty. They also alleged that measures adopted under the EC accord must have as their “center of gravity” the harmonization of national laws in order to improve the workings of the internal market, and that retaining Internet and telephony traffic data amounts to an extensive invasion of privacy rights that can’t be justified on economic grounds.
But the ECJ said the EC Treaty allows EU institutions to act where disparities among national rules are likely to obstruct fundamental freedoms or create market distortions that could directly affect Europe’s internal market. After terrorist attacks in New York City, Madrid and London, EU countries adopted a wide range of laws governing retention of traffic data by service providers, it said. The obligations had “significant economic implications” for providers because they could involve large investment and operating costs, it said.
It was also foreseeable that governments without data retention rules at the time would introduce legislation that could widen existing differences between the various national laws, the court said. The evidence showed those difference were “liable to have a direct impact” on the functioning of the internal market that would become more severe over time, it said.
The directive is essentially aimed at telecommunications service providers, not law enforcement or courts, the ECJ said. It doesn’t harmonize access to data by the police, or the exchange of information between authorities, but is primarily an internal market measure which belongs under the EC Treaty, it said. The ECJ stressed that Ireland’s challenge didn’t go to the issue of whether the law infringes fundamental rights.
Digital Rights Ireland said it’s confident the ECJ will invalidate the law on privacy grounds. An appeal is now before the Irish High Court, which is considering DRI’s request for referral of the human rights issues to the ECJ, DRI Chairman T.J. McIntyre said. The German Working Group on Data Retention was also upbeat. The 34,0000 plaintiffs in a German suit against data-holding have asked the country’s constitutional court to seek an ECJ ruling on whether data retention is compatible with human rights, said Werner Hulsmann.
For Germany’s competitive carriers, the main issue is how the directive operates at the national level, telecommunications attorney Axel Spies said on behalf of the VATM. If providers are to be burdened with collecting data and giving it to law enforcement to prosecute serious crimes on providers, they must be reimbursed, he said. On Jan. 16, the Berlin administrative court granted alternative provider QSC AG a preliminary injunction blocking its data retention obligations, Spies said. The court ruled that as long as the law offers no fair reimbursement provisions, the company is under no obligations to store traffic data, he said.