19 March 2009

German Court Says Data Retention is "Invalid"

As part of a global conspiracy of Glyns, Glyn Wintle has kindly pointed me to this very interesting decision from those fun-loving German judges in Wiesbaden:

As the first German court, the Administrative Court of Wiesbaden has found the blanket recording of the entire population's telephone, mobile phone, e-mail and Internet usage (known as data retention) disproportionate.

The decision published today by the Working Group on Data Retention (decision of 27.02.2009, file 6 K 1045/08.WI) reads: "The court is of the opinion that data retention violates the fundamental right to privacy. It is not necessary in a democratic society. The individual does not provoke the interference but can be intimidated by the risks of abuse and the feeling of being under surveillance [...] The directive [on data retention] does not respect the principle of proportionality guaranteed in Article 8 ECHR, which is why it is invalid."

Now, IANAL, and certainly not a German one, but it seems likely to me that the Administrative Court is not the highest authority in the land (which would be something like the Federal Constitutional Court), so there's probably lots of to-ing and fro-ing still to come on this before a definitive decision is reached. But it's certainly a good start since the that judgment is in tune with commonsense: that data retention is disproportionate and violates privacy.


Anonymous said...

The court has not made a decision about the legality of constitutionality of data retention, but has decided to refer the case to the European Court of Justice for a substantial decision on the compatibility of the data retentiojn directive with the European Convention on Human Rights. Not clear yet if the ECJ will take this up, though.

Glyn Moody said...

Thanks for the clarification.