The European Court of Justice has passed judgement on several linked cases in Europe requiring that ISP retain extensive records of all phone and internet communications. This includes a challenge by Labour’s Tom Watson. The court wrote in a press release:
The Members States may not impose a general obligation to retain data on providers of electronic communications services
EU law precludes a general and indiscriminate retention of traffic data and location data, but it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary. Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU.
In today’s judgment, the Court’s answer is that EU law precludes national legislation that prescribes general and indiscriminate retention of data.
The Court confirms first that the national measures at issue fall within the scope of the directive. The protection of the confidentiality of electronic communications and related traffic data guaranteed by the directive, applies to the measures taken by all persons other than users, whether by private persons or bodies, or by State bodies.
Next, the Court finds that while that directive enables Member States to restrict the scope of the obligation to ensure the confidentiality of communications and related traffic data, it cannot justify the exception to that obligation, and in particular to the prohibition on storage of data laid down by that directive, becoming the rule.
Further, the Court states that, in accordance with its settled case-law, the protection of the fundamental right to respect for private life requires that derogations from the protection of personal data should apply only in so far as is strictly necessary. The Court applies that case-law to the rules governing the retention of data and those governing access to the retained data.
The Court states that, with respect to retention, the retained data, taken as a whole, is liable to allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained.
The interference by national legislation that provides for the retention of traffic data and location data with that right must therefore be considered to be particularly serious. The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.
The Court states that legislation prescribing a general and indiscriminate retention of data does not require there to be any relationship between the data which must be retained and a threat to public security and is not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime. Such national legislation therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the Charter.
The Court makes clear however that the directive does not preclude national legislation from imposing a targeted retention of data for the purpose of fighting serious crime, provided that such retention of data is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, limited to what is strictly necessary. The Court states that any national legislation to that effect must be clear and precise and must provide for sufficient guarantees of the protection of data against risks of misuse. The legislation must indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted, thereby ensuring that the scope of that measure is, in practice, actually limited to what is strictly necessary. In particular, such legislation must be based on objective evidence which makes it possible to identify the persons whose data is likely to reveal a link with serious criminal offences, to contribute to fighting serious crime or to preventing a serious risk to public security.
As regards the access of the competent national authorities to the retained data, the Court confirms that the national legislation concerned cannot be limited to requiring that access should be for one of the objectives referred to in the directive, even if that objective is to fight serious crime, but must also lay down the substantive and procedural conditions governing the access of the competent national authorities to the retained data. That legislation must be based on objective criteria in order to define the circumstances and conditions under which the competent national authorities are to be granted access to the data. Access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime. However, in particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be inferred that that data might, in a specific case, make an effective contribution to combating such activities.
Further, the Court considers that it is essential that access to retained data should, except in cases of urgency, be subject to prior review carried out by either a court or an independent body. In addition, the competent national authorities to whom access to retained data has been granted must notify the persons concerned of that fact.
Given the quantity of retained data, the sensitivity of that data and the risk of unlawful access to it, the national legislation must make provision for that data to be retained within the EU and for the irreversible destruction of the data at the end of the retention period.
And when the authorities talk about their fight against ‘serious’ crime, recent governments have been updating legislation to redefine practically all crimes as ‘serious’ crimes. Eg possessing a single spliff may in practice be a trivial crime, but the law on possession has a high maximum sentence that qualifies it as a ‘serious’ crime. It does not become trivial until it goes to court and the a trivia punishment has been handed down. So using mass snooping data would be easily justified to track down trivial drug users.