National Legal Challenges To The Information Retentiveness Directive

Chris Jones, Researcher for Statewatch

This post, which examines the numerous legal challenges against the EU's Data Retention Directive at both national in addition to European Union grade (not including today's judgment), is the 3rd postal service inwards a serial examining the EU's mandatory information retentivity legislation, which was struck downward today past times the Court of Justice of the European Union (CJEU). It is based on run undertaken past times Statewatch every bit role of the SECILE project (Securing Europe through Counter-terrorism: Impact, Legitimacy in addition to Effectiveness).

 EU Court of Justice legal ground challenge

The commencement legal challenge to the Data Retention Directive came when Ireland, supported past times Slovakia, asked the European Union Court of Justice to annul the Directive on the grounds that it had the incorrect legal basis. They argued that the right legal ground for information retentivity resided “in the provisions of the European Union Treaty concerning constabulary in addition to judicial cooperation inwards criminal matters,” rather than those on the internal market. The ECJ dismissed the representative in Feb 2009, stating that: “Directive 2006/24… regulates operations which are independent of the implementation of whatsoever constabulary in addition to judicial cooperation inwards criminal matters. It harmonises neither the number of access to information past times the competent national law-enforcement authorities nor that relating to the usage in addition to commutation of those information betwixt those authorities… “It follows that the noun content of Directive 2006/24 is directed essentially at the activities of the service provides inwards the relevant sector of the internal market, to the exclusion of State activities coming nether Title VI of the European Union Treaty".

Bulgaria

The commencement ruling on national laws transposing the Directive came from Republic of Bulgaria inwards proceedings launched past times the NGO Access to Information Program. In Dec 2008 the country’s Supreme Administrative Court annulled an article of the transposing legislation permitting the Ministry of Interior “passive access through a figurer terminal” to retained data, every bit good every bit providing access without judicial permission to “security services in addition to other law enforcement bodies”. The courtroom found that: “[T]he provision did non laid whatsoever limitations with regard to the information access past times a figurer terminal in addition to did non supply for whatsoever guarantees for the protection of the right to privacy stipulated past times Art. 32, Para. 1 of the Bulgarian Constitution. No machinery was established for the honour of the constitutionally granted right of protection against unlawful interference inwards one’s private or household unit of measurement affairs in addition to against encroachments on one’s honour, dignity in addition to reputation.” The courtroom also found the legislation failed to brand reference to other relevant laws – the Penal Procedure Code, the Special Surveillance Means Act in addition to the Personal Data Protection Act – “which specify weather nether which access to personal information shall last granted.”

Hungary

In June 2008 the Hungarian Civil Liberties Union (HCLU or TASZ, Társaság a Szabadságjogkért) requested “the ex-post examination” past times the Hungarian Constitutional Court of the amendment of Act C of 2003 on electronic communications, “for unconstitutionality in addition to the annulment of the information retentivity provisions.” According to the HCLU, Act C “already comprised numerous restrictive information retentivity provisions prior to the directive. The only changes brought inwards past times the amendments were the retentivity of Internet communications information in addition to the elimination of the lax – but at to the lowest degree pre-defined – legal purposes of the information processing”. The HCLU argued that “the amendments completely disregarded the provisions of the directive [stating] that information should last ‘available for the purpose of investigation, detection in addition to prosecution of serious crimes’.” Despite beingness filed inwards 2008, the representative is yet to last heard. According to Fanny Hidvégi of the HCLU, this is because every bit of 1 Jan 2012 novel restrictions were placed on submitting cases to the Constitutional Court, in addition to “every pending representative submitted past times a individual or establishment which no longer has the right to make in addition to so were automatically terminated”. The HCLU has begun a novel in addition to lengthy physical care for that requires the exhaustion of all other remedies earlier the Constitutional Court tin dismiss examine the Hungarian information retentivity measures.

Romania

In Oct 2009, the Romanian Constitutional Court found that proposed national legislation implementing the Data Retention Directive violated Romanaian constitutional provisions protecting liberty of movement; the right to intimate, private in addition to household unit of measurement life; secrecy of correspondence; in addition to liberty of expression. The courtroom found that the government’s endeavor to justify the mandatory retentivity of telecommunication information past times invoking undefined “threats to national security” was unlawful. The Court also referred to the 1978 ECHR ruling inwards Klass v Germany, which stated that “taking surveillance measures without adequate in addition to sufficient safeguards tin dismiss atomic number 82 to ‘destroying commonwealth on the the world of defending it’.”

 In Oct 2011 the European Commission asked the Romanaian authorities to convey forwards novel laws transposing the Directive, issuing a “reasoned opinion” nether Article 258 of the TFEU, which carries the threat of sum infringement proceedings at the European Court of Justice if the asking is non met. H5N1 novel law was duly drafted, but was rejected past times the Romanaian Senate. The law was heavily criticised inwards the media prior to the vote in addition to the country’s Data Protection Authority had refused to endorse it, claiming that articles relating to the safety services were “still vague”. Civil monastic say organisations also opposed it in addition to fifty-fifty the authorities refused to sponsor it, leaving the Minister of Communications in addition to Information Society to suggest it inwards his role every bit MP rather than minister. Strong back upwardly from the Minister of European Affairs fuelled criticism that it was motivated exclusively past times the demand to escape sanction past times the European Court of Justice.

Ultimately the Senate vote was non decisive in addition to the law continued its journeying to the Chamber of Deputies, where at the terminate of May 2012 it was adopted with 197 votes for in addition to xviii against, with many abstentions with the 332 deputies. There was no noun give-and-take of telephone commutation rights issues inwards the Chamber of Deputies or the original 2 committees that debated the law in addition to critics receive got argued that the provisions on access to retained information are fifty-fifty to a greater extent than problematic than the original statute. On 21 Feb 2013 the European Commission withdrew the infringement physical care for that it had opened inwards 2011.

Cyprus

In Feb 2011 the Supreme Court of Republic of Cyprus ruled that aspects of the national transposing legislation breached the Cypriot constitution in addition to representative law on surveillance. The representative was brought past times individuals whose telecommunication information had been disclosed to the constabulary inwards accordance with District Court orders. They argued that the laws underlying the orders were based (Articles 4 in addition to v of Law 183(I) 2007, that sought to harmonise Cypriot law with the Directive), in addition to hence the District Court orders themselves violated their rights to privacy in addition to confidentiality of communications. The Supreme Court found that petitioners had indeed been land of study to a violation of their rights in addition to annulled provisions it said went beyond the requirements of the Data Retention Directive. However, the legality of the Directive itself was non called into question.

Germany

Legislation transposing the Data Retention Directive into the Telecommunication Act in addition to Code of Criminal Procedure was passed past times the Bundestag on ix Nov 2007 in addition to entered into forcefulness on 1 Jan 2008. The twenty-four hr menstruation before, 31 Dec 2007, 35,000 High German citizens (represented past times the NGO AK Vorrat) filed a electrical charge against the legislation at the Federal Constitutional Court. On 2 March 2010 the Court ruled that the transposing provisions were a disproportionate interference with Article 10 (confidentiality of communications) of the Basic Law (Grundgesetz), in addition to contravened legal standards on purpose limitation, information security, transparency in addition to legal remedies.

However, the Court made no ruling on the actual Directive, stating that information retentivity is inwards regulation proportionate to the aim of investigating serious criminal offence in addition to preventing imminent threats against life, body, liberty of persons, in addition to the existence in addition to safety of the Federal Republic or i of its states. The Court found that the novel domestic law failed to comply with legal standards on purpose limitation (restrictions on usage of the retained data), information security, transparency in addition to legal remedies.

In Jan 2011 the Ministry of Justice (MoJ) presented a paper proposing an option to information retentivity – a “quick freeze” scheme of limited information preservation for criminal investigations. The constabulary and/or populace prosecutors would number a “quick freeze” monastic say seeking access to metadata already held past times telecommunication providers, for representative for billing purposes. To genuinely access the “frozen”’ information would require the approving of a judge. In addition, the MoJ proposed an obligation for ISPs to shop network traffic information for 7 days, allowing criminal investigators to seat persons behind (already known) IP addresses inwards especial inwards cases of shaver pornography. Criminal investigators would asking the traffic in addition to communications information via service providers without having straight access to these traffic data. This newspaper reflected proposals made inwards June 2010 past times the Federal Commissioner for Data Protection, every bit good every bit the suggestions of to a greater extent than pragmatic privacy advocates.

More radical activists claim that whatsoever mandatory storage of communications information should last prohibited. The Interior Ministry rejected these proposals and insisted on sum implementation of the Directive, arguing that the Constitutional Court had already shown that it is possible to implement the Directive in addition to ensure private privacy through high information safety standards, including encryption in addition to the “four eyes principle” (approval past times at to the lowest degree 2 people) every bit prerequisite for accessing information in addition to log files; strict purpose limitation; in addition to the protection of professions whose confidentiality must last ensured.

The MoJ produced a “quick freeze” nib in Apr 2012 but continued opposition from the Interior Ministry meant that it was never tabled inwards Parliament. The Interior Ministry was unhappy with the length of the proposed freezing periods, demanding 3 months instead of the i calendar month suggested past times the Ministry of Justice. Moreover, the Interior Ministry wanted to include crimes such every bit fraud in addition to hacking. The contention continues in addition to no novel legislation has yet been introduced.

By this fourth dimension the European Commission had initiated infringement proceedings and took its representative to the European Court of Justice inwards July 2012. The Commission is seeking to impose a daily fine of €315,000.

Czech Republic

On thirteen March 2011 the Czech Republic's Constitutional Court declared national legislation implementing the Directive unconstitutional. It found that the retentivity menstruation exceeded the requirements of the Directive, in addition to that usage of the information was non restricted to cases of serious criminal offence in addition to terrorism. “The national legislation lacked, according to the constitutional court, clear in addition to detailed rules for the protection of personal information every bit good every bit the obligation to inform the individual whose information has been requested.” As inwards Germany, the Court stated that it could non review the Directive itself, but noted in that location was zip inwards regulation preventing implementation inwards conformity with constitutional law.

H5N1 minute Constitutional Court decision in Dec 2011 examined the procedures seat inwards house for obtaining access to retained information in addition to found the “procedure inwards inquiry to last also vague, inwards breach of [the] proportionality dominion (its minute step) in addition to thus unconstitutional due to interference with right to privacy in addition to informational self-determination.” In the meantime the Czech authorities revised the implementing legislation with modifications that took work concern human relationship of the judgment.The NGO Iuridicum Remedium has lodged fresh proceedings against the revised legislation on the grounds that regulation remains inadequate in addition to that the novel decree could supply for the “monitoring of contents of Internet communications”.

Slovakia

In August 2012 a grouping of Slovakian MPs, supported past times the European Information Society Institute, lodged a legal complaint against the legislation implementing the Data Directive. The electrical charge asks the Slovak Constitutional Court to examine whether the laws implementing the Directive in addition to dealing with access past times the authorities to retained information are compatible with constitutional provisions on proportionality, the rights to privacy in addition to information protection, in addition to the provision granting liberty of speech. It also argues that the measures infringe provisions guaranteeing privacy, information protection in addition to liberty of appear inwards Slovakian human rights law, the European Convention on Human Rights in addition to the Charter of Fundamental Rights of the European Union. The electrical charge has non yet been resolved.

Sweden

The European Commission has engaged inwards a lengthy battle to show to convey Sweden’s domestic legislation into describe with the Directive. After the terra firma missed the initial September 2007 deadline, the Commission separate post, ultimately agreed with this recommendation. The European Union has in conclusion been forced to redraft its mandatory information retentivity rules.


 Barnard & Peers: chapter 9, chapter 25

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