Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General

Almost exactly a year ago, we wrote about two important cases before Europe's highest court, the Court of Justice of the European Union (ECJ). They both involved the European Union's Data Retention Directive, which obliges telecoms companies to retain metadata about their customers -- now an even more contentious issue in the wake of Edward Snowden's leaks. One case was from Ireland, brought by Digital Rights Ireland, which needs donations to carry on its great work, and the other from the Austrian digital rights group AKVorrat (which probably also needs support.) 

On Techdirt.

Please Help Overturn EU Data Retention Directive

The last couple of weeks have been full of the revelations about NSA spying on a massive scale. What has been slightly disconcerting is that the agency and its defenders have essentially tried to argue that the spying doesn't matter because it's only aimed at "foreigners". But that's us: which means that we are the target of this spying, even if others get caught up in it too. 

On Open Enterprise blog.

UK Data Retention Double Standards

As we know, the UK government intends to force UK ISPs to store vast amounts of data about our online activities. The idea that this might be an undue burden is dismissed out of hand. But what do we now read about using intercept evidence in court?

Lord Carlile said the long-term aim was to introduce intercept evidence, but the circumstances were not yet right.

"Before intercept evidence can be useful in court it has to be able to satisfy two broad tests," he said. "It has to be legally viable and it has to be practically viable.

"I suspect that [the government] may well say that neither of those broad tests have been met."

He said that under European human rights law all material intercepted during the course of an inquiry would have to be available at trial, possibly several years later.

The practical means to electronically store that much data did not currently exist, he said.

Obviously the government's intercept data is special heavy *pixie* data that can't be stored on ordinary technology in the same way that the terabytes of *ordinary* ISP data can...

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UK Data Retention: the First 70 Years

If you thought retention of communications data was a new habit of the UK government, think again:

What was also new to me is the fact that the British even back then [during the Second World War] demanded that Cable+Wireless provides copies of all telegraphs through their network. And that's some 70-80 years before data retention on communications networks becomes a big topic ;)

Nothing new under the sun...

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.

The Knaves or the Fools?

Old news, but I've only just caught up with it. According to the EUobserver:

US authorities can get access to EU citizens' data on phone calls, sms' and emails, giving a recent EU data-retention law much wider-reaching consequences than first expected, reports Swedish daily Sydsvenskan.

It is hard to decide whom to despise more: the knaves for having the bare-faced cheek to ask for this information, or the fools for supinely agreeing to give it. And someone has a taste for deep irony:

EU and US representatives met in Vienna for an informal high level meeting on freedom, security and justice where the US expressed interest in the future storage of information.

Make that "lack of freedom, insecurity and injustice". Details of the sordid episode can be found at Statewatch.