January 6, 2010

EU DATA RETENTION DIRECTIVE: WOULD IT SURVIVE?


By Abu Bakar Munir

The EU Data Retention Directive 2006/24/EC is being implemented. This Directive obligates the operators of public telephone services and internet service providers to retain trafiic and communications data for a period of between six months and two years for the purpose of investigation, detection and prosecution of serious crime. This means that each Member State should have its own version of the “data retention” directive embodied and incorporated into its national law. Unfortunately, the national legislation some of the Member States have been challenged and declared unconstitutional and in contravention with Article 8 of the European Convention on Human Rights (ECHR).

The Romanian Constitutional Court (RCC) in its decision no 1258 (1) from 8 October 2009 held that the Romanian Law 298/2008 which implements the Directive was unconstitutional. Among others, the RCC based its decision on the fact that Law 298/2008 which mandates data retention considers all citizens as potential criminals. The RCC held,"This operation equally addresses all the law subjects, regardless of whether they have committed penal crimes or not or whether they are the subject of a penal investigation or not, which is likely to overturn the presumption of innocence and to transform a priori all users of electronic communication services or public communication networks into people susceptible of committing terrorism crimes or other serious crimes.”

The RCC went further and held that Law 298/2008 has large applicability – practically to all physical and legal persons users of electronic communication services or public communication networks. It can't be considered to be in agreement with the provisions in the Constitution and Convention for the defence of human rights and fundamental freedoms regarding the guaranteeing of the rights to private life, secrecy of the correspondence and freedom of expression.

The Bulgarian Supreme Administrative Court (SAC) in December 2008 annulled Article 5 of the national legislation that implements the Data Retention Directive. A five-member panel of the SAC annulled the Article, considering that the 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 the Bulgarian Constitution. The SAC held that Article 5 of the Regulation is in contradiction with the provision of Article 8 of the ECHR.

On 16 March 2009, the Administrative Court of Wiesbaden in Germany held that the blanket recording of the entire population’s telephone, mobile phone, e-mail and Internet usage was disproportionate. The court is of the opinion that data retention violates the fundamental right to privacy. It is not necessary in a democratic society. The Court held that Directive does not respect the principle of proportionality guaranteed in Article 8 ECHR and therefore is invalid.

On 15 December 2009, the Germany's biggest-ever class action lawsuit took place with over 34,000 plaintiffs which includes the Justice Minister challenging the local law that implements the Directive. The parties to this legal battle are anxiously waiting for the decision of the German Constitutional Court on this matter. So as the other Europeans and EU Member Countries. Constitutional Court President Hans-J├╝rgen Papier said at the beginning of the hearing that the complaint raises fundamental questions about the relationship between freedom and security. Let’s wait and see.

The Data Retention Directive, so far, has not been challenged in the U.K. However, in the landmark case from the country, S. Marper v The United Kingdom, the European Court of Human Rights had held that blanket retention of fingerprints, cellular samples and DNA profiles is in breach of Article 8 of the ECHR. In this case, the Court held:

“The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

According to the European Digital Rights (EDRi), another action is pending in Ireland, while an application to the Constitutional Court of the Czech Republic is currently being prepared. As recently as December 2009, the EDRi and German Working Group on Data Retention (AK Vorrat) are calling on the European Union to repeal the 2006 Directive. Alternatively, they demanded that it is amended to introduce an opt-out right allowing Member States to decide whether or not to require the retention of communications data. The Directive is still very young but it is already facing a lot of challenges. In fact, it has received strong criticisms and resistances throughout since the very inception until its birth. But now it is a different kind of challenge – legal in nature. Would it survive?

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