The Novel Thought On Information Retention: Does It Protect The Correct To Privacy?
November 23, 2018
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Matthew White, Ph.D candidate, Sheffield Hallam University
Introduction
Has an Advocate General (AG) inward the Court of Justice of the European Union unleashed the powerfulness of the European Convention on Human Rights (ECHR)? On xix July 2016, the AG gave his Opinion inward the joined cases of C‑203/15 as well as C‑698/15 Watson as well as Tele2. The AG felt that full general information retentiveness obligations imposed past times Member US may endure compatible amongst telephone commutation rights enshrined inward European Union law, provided that at that topographic point are robust safeguards (para 7). This postal service briefly outlines the background (for a to a greater extent than detailed background, reckon questioned past times Stalla-Bourdillon because it appeared the High Court followed this interpretation based on at that topographic point non beingness an ECHR counterpart. But on closer inspection, as Stalla-Bourdillon highlighted, at that topographic point is extensive Article 8 instance law on the protection of personal data, which is suggested, does inward fact correspond amongst Article 8 CFR. Therefore, both the High Court as well as AG has fallen prey to only considering the provisions of the ECHR as well as non the European Court of Human Rights’s (ECtHR) interpretation of those provisions, thus nitty-gritty over cast seemingly prevailed.
It is suggested because there is such extensive instance police pull on the protection of personal information inward lite of Article 8 ECHR, it is only correct that it should endure used as a guide when considering Article 8 CFR. Article 52(3) notes that ‘the meaning as well as scope of those rights shall endure the same as those set downward past times the said Convention.’ In PPU J McB v LE the CJEU held that non only does the rights gear upwards out inward ECHR are to correspond, but also the important given through the ECtHR’s jurisprudence (para 53) (see also). In Schecke the CJEU held that:
[T]he correct to honor for private life amongst regard to the processing of personal data, recognised past times Articles seven as well as 8 of the Charter, concerns whatever information relating to an identified or identifiable individual...and the limitations which may lawfully endure imposed on the correct to the protection of personal information correspond to those tolerated inward relation to Article 8 of the Convention.’(para 52).
It has been maintained that such an interpretation tin endure problematic because the CJEU has allowed Article 8 CFR to endure absorbed past times Article 7. However, this does non as well as would non weaken the opinion that Article 8 CFR as a standalone correct should endure interpreted (where possible) inward accordance amongst principles of information protection embedded within the ECtHR’s jurisprudence. Read as a whole, Article 52(3) would hence endure properly adhered to, as well as would also allow the CJEU to deviate, if demand be, to offering a higher measure of protection.
A full general obligation to retain:
The AG as well as so considered whether Article 15(1) of the Directive allowed Member US to impose a full general information retentiveness obligation (para 84) past times establishing whether such an obligation barbarous within the range of the Directive (para 86). The Czech, French, Polish as well as Great Britain Governments all contended that information retentiveness was excluded past times Article 1(3) (which excludes matters such as populace security, defence, State safety from the range of the Directive) (para 88). However, the AG rejected this past times highlighting that:
· Article 15(1) governed exactly that (retention of data) (para 90),
· Provisions of access falling within Article 1(3) does non prevent retentiveness from falling within Article 1(3) (para 92-94),
· The approach taken past times the CJEU inward Ireland v Parliament as well as Council meant that full general information obligations were non within the range of criminal police pull (para 95).
When it came to the number of whether the Directive applied the AG referred to the Member US ‘entitlement’ nether Article 15(1) i.e. Member US have got a choice (para 106). The AG as well as so referred to Recital eleven of the Directive which did non alter the residue betwixt an individual’s correct to privacy as well as the possibility of Member US to convey measures necessary for the protection of populace safety etc (para 107). Moreover, the AG highlighted that the Directive did non alter the powerfulness of Member US to send out lawful interception of electronic communications, or convey other measures, if necessary for whatever of these purposes as well as in accordance amongst the ECHR (para 107). The AG opined that full general information retentiveness obligations were consistent amongst the Directive as well as hence Member US were entitled to avail themselves of that possibility nether Article 15(1), land of report non only to its requirements, but that of the CFR inward lite of Digital Rights Ireland (para 116). Although the AG felt that full general obligations of information retentiveness were permissible nether European Union police pull (subject to restrictions), an avenue was created for testing the full general obligations itself nether the ECHR.
In accordance with the law? But does this non defeat the AG’s premise?
When the AG considered the requirement for legal ground inward national law, he invited that CJEU to confirm that the interpretation of ‘provided for past times law’ inward Article 52(1) CFR accorded amongst that of the ECtHR’s jurisprudence on a stair out beingness ‘in accordance amongst the law’(para 134-137). The AG highlighted that the ECtHR has developed a substantial trunk of jurisprudence on the affair which could endure summarised as follows:
· A legal ground that is adequately accessible as well as foreseeable i.e. the police pull is formulated amongst sufficient precision to enable the private — if demand endure amongst appropriate advice — to regulate their conduct,
· This legal ground must supply adequate protection against arbitrary interference, and
· Must define amongst sufficient clarity the range as well as mode of exercise of the powerfulness conferred on the competent authorities (para 139).
The AG was of the watch that ‘provided for past times law’ inward Article 52(1) CFR needs to endure the same as that ascribed to it inward connectedness amongst the ECHR (para 140). The AG’s reasoning was as follows:
· Article 53 CFR explains that its provisions must never endure inferior to what is guaranteed past times the ECHR as well as hence the CFR must at to the lowest degree be as stringent as the ECHR (para 141),
· It would endure inappropriate to impose different criteria on the Member US depending on which of those 2 instruments was nether consideration (para 142).
The AG felt that full general information retentiveness obligations must endure founded on a legal ground that is adequately accessible as well as foreseeable as well as provides adequate protection against arbitrary interference (para 143). This would solve the work of the CJEU falling into ‘the trap of tautologically regarding a legal norm, the validity of which is beingness questioned, as beingness allegedly inward accordance amongst the police pull because it is a law.’
This as well as so raises the interesting issue, if this is the preferred interpretation, how could a full general obligation to retain information not amount to arbitrary interference? The AG after admits that the disadvantage of this full general obligation arises ‘from the fact that the vast bulk of the information retained volition relate to persons who volition never endure connected inward whatever way amongst serious crime’ (para 252). If the vast bulk of information retained is of individuals who are unrelated to whatever serious crime, how could this fifty-fifty endure suggested to not endure arbitrary?
If inward draw amongst the ECtHR’s jurisprudence, that for a stair out to endure inward accordance amongst the law, a stair out must endure sufficiently precise so individuals tin regulate their conduct, how could this foursquare amongst full general obligations to retain information which occurs irrespective of conduct? The ECtHR’s Grand Chamber inward Professor Lorna Woods’s take) to this instance whilst highlighting aspects relating to the ECHR as well as that only about of the AG’s conclusions move self defeating for requiring European Union police pull to endure no less stringent than the ECHR.
Background
Case C‑203/15
A hateful solar daytime after questioned past times Stalla-Bourdillon because it appeared the High Court followed this interpretation based on at that topographic point non beingness an ECHR counterpart. But on closer inspection, as Stalla-Bourdillon highlighted, at that topographic point is extensive Article 8 instance law on the protection of personal data, which is suggested, does inward fact correspond amongst Article 8 CFR. Therefore, both the High Court as well as AG has fallen prey to only considering the provisions of the ECHR as well as non the European Court of Human Rights’s (ECtHR) interpretation of those provisions, thus nitty-gritty over cast seemingly prevailed.
It is suggested because there is such extensive instance police pull on the protection of personal information inward lite of Article 8 ECHR, it is only correct that it should endure used as a guide when considering Article 8 CFR. Article 52(3) notes that ‘the meaning as well as scope of those rights shall endure the same as those set downward past times the said Convention.’ In PPU J McB v LE the CJEU held that non only does the rights gear upwards out inward ECHR are to correspond, but also the important given through the ECtHR’s jurisprudence (para 53) (see also). In Schecke the CJEU held that:
[T]he correct to honor for private life amongst regard to the processing of personal data, recognised past times Articles seven as well as 8 of the Charter, concerns whatever information relating to an identified or identifiable individual...and the limitations which may lawfully endure imposed on the correct to the protection of personal information correspond to those tolerated inward relation to Article 8 of the Convention.’(para 52).
It has been maintained that such an interpretation tin endure problematic because the CJEU has allowed Article 8 CFR to endure absorbed past times Article 7. However, this does non as well as would non weaken the opinion that Article 8 CFR as a standalone correct should endure interpreted (where possible) inward accordance amongst principles of information protection embedded within the ECtHR’s jurisprudence. Read as a whole, Article 52(3) would hence endure properly adhered to, as well as would also allow the CJEU to deviate, if demand be, to offering a higher measure of protection.
A full general obligation to retain:
The AG as well as so considered whether Article 15(1) of the Directive allowed Member US to impose a full general information retentiveness obligation (para 84) past times establishing whether such an obligation barbarous within the range of the Directive (para 86). The Czech, French, Polish as well as Great Britain Governments all contended that information retentiveness was excluded past times Article 1(3) (which excludes matters such as populace security, defence, State safety from the range of the Directive) (para 88). However, the AG rejected this past times highlighting that:
· Article 15(1) governed exactly that (retention of data) (para 90),
· Provisions of access falling within Article 1(3) does non prevent retentiveness from falling within Article 1(3) (para 92-94),
· The approach taken past times the CJEU inward Ireland v Parliament as well as Council meant that full general information obligations were non within the range of criminal police pull (para 95).
When it came to the number of whether the Directive applied the AG referred to the Member US ‘entitlement’ nether Article 15(1) i.e. Member US have got a choice (para 106). The AG as well as so referred to Recital eleven of the Directive which did non alter the residue betwixt an individual’s correct to privacy as well as the possibility of Member US to convey measures necessary for the protection of populace safety etc (para 107). Moreover, the AG highlighted that the Directive did non alter the powerfulness of Member US to send out lawful interception of electronic communications, or convey other measures, if necessary for whatever of these purposes as well as in accordance amongst the ECHR (para 107). The AG opined that full general information retentiveness obligations were consistent amongst the Directive as well as hence Member US were entitled to avail themselves of that possibility nether Article 15(1), land of report non only to its requirements, but that of the CFR inward lite of Digital Rights Ireland (para 116). Although the AG felt that full general obligations of information retentiveness were permissible nether European Union police pull (subject to restrictions), an avenue was created for testing the full general obligations itself nether the ECHR.
In accordance with the law? But does this non defeat the AG’s premise?
When the AG considered the requirement for legal ground inward national law, he invited that CJEU to confirm that the interpretation of ‘provided for past times law’ inward Article 52(1) CFR accorded amongst that of the ECtHR’s jurisprudence on a stair out beingness ‘in accordance amongst the law’(para 134-137). The AG highlighted that the ECtHR has developed a substantial trunk of jurisprudence on the affair which could endure summarised as follows:
· A legal ground that is adequately accessible as well as foreseeable i.e. the police pull is formulated amongst sufficient precision to enable the private — if demand endure amongst appropriate advice — to regulate their conduct,
· This legal ground must supply adequate protection against arbitrary interference, and
· Must define amongst sufficient clarity the range as well as mode of exercise of the powerfulness conferred on the competent authorities (para 139).
The AG was of the watch that ‘provided for past times law’ inward Article 52(1) CFR needs to endure the same as that ascribed to it inward connectedness amongst the ECHR (para 140). The AG’s reasoning was as follows:
· Article 53 CFR explains that its provisions must never endure inferior to what is guaranteed past times the ECHR as well as hence the CFR must at to the lowest degree be as stringent as the ECHR (para 141),
· It would endure inappropriate to impose different criteria on the Member US depending on which of those 2 instruments was nether consideration (para 142).
The AG felt that full general information retentiveness obligations must endure founded on a legal ground that is adequately accessible as well as foreseeable as well as provides adequate protection against arbitrary interference (para 143). This would solve the work of the CJEU falling into ‘the trap of tautologically regarding a legal norm, the validity of which is beingness questioned, as beingness allegedly inward accordance amongst the police pull because it is a law.’
This as well as so raises the interesting issue, if this is the preferred interpretation, how could a full general obligation to retain information not amount to arbitrary interference? The AG after admits that the disadvantage of this full general obligation arises ‘from the fact that the vast bulk of the information retained volition relate to persons who volition never endure connected inward whatever way amongst serious crime’ (para 252). If the vast bulk of information retained is of individuals who are unrelated to whatever serious crime, how could this fifty-fifty endure suggested to not endure arbitrary?
If inward draw amongst the ECtHR’s jurisprudence, that for a stair out to endure inward accordance amongst the law, a stair out must endure sufficiently precise so individuals tin regulate their conduct, how could this foursquare amongst full general obligations to retain information which occurs irrespective of conduct? The ECtHR’s Grand Chamber inward Digital Rights Ireland (where the Court of Justice of the European Union (CJEU) ruled that the EU’s Data Retention Directive (DRD) was invalid for beingness incompatible amongst the Charter of Fundamental Rights (CFR)), the offset claimant, Tele2, notified the Swedish Post as well as Telecommunications Authority (PTS) of its determination to cease retaining information inward Chapter 6 of the LEK (the relevant Swedish law) amongst the aim of deleting (para 50). The National Police Board (RPS) complained to the PTS almost Tele2’s actions as having serious consequences for police pull enforcement activities (para 51). PTS ordered Tele2 to resume retentiveness inward accordance amongst Chapter 6 (para 52), to which Tele2 appealed to the Stockholm Administrative Court (SAC) but lost (para 53). Tele2 as well as so sought to appeal against the SAC (para 54), but the Stockholm Administrative Court of Appeal (SACA) felt making a preliminary reference to the CJEU would endure to a greater extent than appropriate where it asked:
· Is a full general obligation to retain all traffic information indiscriminately compatible amongst Art.15(1) of the (ePrivacy) Directive (Directive) as well as Articles 7, 8 as well as 52(1) of the CFR?
· If no, is such an obligation nonetheless permitted where:
§ access past times national authorities was governed inward a specified manner, and
§ the protection as well as safety of information are regulated inward a specified manner, and
§ all relevant information is retained for 6 months?
Case C‑698/15
I previously questioned past times Stalla-Bourdillon because it appeared the High Court followed this interpretation based on at that topographic point non beingness an ECHR counterpart. But on closer inspection, as Stalla-Bourdillon highlighted, at that topographic point is extensive Article 8 instance law on the protection of personal data, which is suggested, does inward fact correspond amongst Article 8 CFR. Therefore, both the High Court as well as AG has fallen prey to only considering the provisions of the ECHR as well as non the European Court of Human Rights’s (ECtHR) interpretation of those provisions, thus nitty-gritty over cast seemingly prevailed.
It is suggested because there is such extensive instance police pull on the protection of personal information inward lite of Article 8 ECHR, it is only correct that it should endure used as a guide when considering Article 8 CFR. Article 52(3) notes that ‘the meaning as well as scope of those rights shall endure the same as those set downward past times the said Convention.’ In PPU J McB v LE the CJEU held that non only does the rights gear upwards out inward ECHR are to correspond, but also the important given through the ECtHR’s jurisprudence (para 53) (see also). In Schecke the CJEU held that:
[T]he correct to honor for private life amongst regard to the processing of personal data, recognised past times Articles seven as well as 8 of the Charter, concerns whatever information relating to an identified or identifiable individual...and the limitations which may lawfully endure imposed on the correct to the protection of personal information correspond to those tolerated inward relation to Article 8 of the Convention.’(para 52).
It has been maintained that such an interpretation tin endure problematic because the CJEU has allowed Article 8 CFR to endure absorbed past times Article 7. However, this does non as well as would non weaken the opinion that Article 8 CFR as a standalone correct should endure interpreted (where possible) inward accordance amongst principles of information protection embedded within the ECtHR’s jurisprudence. Read as a whole, Article 52(3) would hence endure properly adhered to, as well as would also allow the CJEU to deviate, if demand be, to offering a higher measure of protection.
A full general obligation to retain:
The AG as well as so considered whether Article 15(1) of the Directive allowed Member US to impose a full general information retentiveness obligation (para 84) past times establishing whether such an obligation barbarous within the range of the Directive (para 86). The Czech, French, Polish as well as Great Britain Governments all contended that information retentiveness was excluded past times Article 1(3) (which excludes matters such as populace security, defence, State safety from the range of the Directive) (para 88). However, the AG rejected this past times highlighting that:
· Article 15(1) governed exactly that (retention of data) (para 90),
· Provisions of access falling within Article 1(3) does non prevent retentiveness from falling within Article 1(3) (para 92-94),
· The approach taken past times the CJEU inward Ireland v Parliament as well as Council meant that full general information obligations were non within the range of criminal police pull (para 95).
When it came to the number of whether the Directive applied the AG referred to the Member US ‘entitlement’ nether Article 15(1) i.e. Member US have got a choice (para 106). The AG as well as so referred to Recital eleven of the Directive which did non alter the residue betwixt an individual’s correct to privacy as well as the possibility of Member US to convey measures necessary for the protection of populace safety etc (para 107). Moreover, the AG highlighted that the Directive did non alter the powerfulness of Member US to send out lawful interception of electronic communications, or convey other measures, if necessary for whatever of these purposes as well as in accordance amongst the ECHR (para 107). The AG opined that full general information retentiveness obligations were consistent amongst the Directive as well as hence Member US were entitled to avail themselves of that possibility nether Article 15(1), land of report non only to its requirements, but that of the CFR inward lite of Digital Rights Ireland (para 116). Although the AG felt that full general obligations of information retentiveness were permissible nether European Union police pull (subject to restrictions), an avenue was created for testing the full general obligations itself nether the ECHR.
In accordance with the law? But does this non defeat the AG’s premise?
When the AG considered the requirement for legal ground inward national law, he invited that CJEU to confirm that the interpretation of ‘provided for past times law’ inward Article 52(1) CFR accorded amongst that of the ECtHR’s jurisprudence on a stair out beingness ‘in accordance amongst the law’(para 134-137). The AG highlighted that the ECtHR has developed a substantial trunk of jurisprudence on the affair which could endure summarised as follows:
· A legal ground that is adequately accessible as well as foreseeable i.e. the police pull is formulated amongst sufficient precision to enable the private — if demand endure amongst appropriate advice — to regulate their conduct,
· This legal ground must supply adequate protection against arbitrary interference, and
· Must define amongst sufficient clarity the range as well as mode of exercise of the powerfulness conferred on the competent authorities (para 139).
The AG was of the watch that ‘provided for past times law’ inward Article 52(1) CFR needs to endure the same as that ascribed to it inward connectedness amongst the ECHR (para 140). The AG’s reasoning was as follows:
· Article 53 CFR explains that its provisions must never endure inferior to what is guaranteed past times the ECHR as well as hence the CFR must at to the lowest degree be as stringent as the ECHR (para 141),
· It would endure inappropriate to impose different criteria on the Member US depending on which of those 2 instruments was nether consideration (para 142).
The AG felt that full general information retentiveness obligations must endure founded on a legal ground that is adequately accessible as well as foreseeable as well as provides adequate protection against arbitrary interference (para 143). This would solve the work of the CJEU falling into ‘the trap of tautologically regarding a legal norm, the validity of which is beingness questioned, as beingness allegedly inward accordance amongst the police pull because it is a law.’
This as well as so raises the interesting issue, if this is the preferred interpretation, how could a full general obligation to retain information not amount to arbitrary interference? The AG after admits that the disadvantage of this full general obligation arises ‘from the fact that the vast bulk of the information retained volition relate to persons who volition never endure connected inward whatever way amongst serious crime’ (para 252). If the vast bulk of information retained is of individuals who are unrelated to whatever serious crime, how could this fifty-fifty endure suggested to not endure arbitrary?
If inward draw amongst the ECtHR’s jurisprudence, that for a stair out to endure inward accordance amongst the law, a stair out must endure sufficiently precise so individuals tin regulate their conduct, how could this foursquare amongst full general obligations to retain information which occurs irrespective of conduct? The ECtHR’s Grand Chamber inward blogged on the province of affairs inward the UK, but volition brand a quick summary for the purposes of this postal service (or alternatively reckon paras 56-60 of the Opinion). The UK responded to Digital Rights Ireland past times introducing the Data Retention Investigatory Powers Act 2014 (DRIPA 2014). This was successfully challenged inward the High Court past times Tom Watson MP as well as David Davis MP. But the success was brusk lived when the Court of Appeal disagreed amongst the High Court, but made a preliminary reference to the CJEU asking:
· Did the CJEU inward Digital Rights Republic of Ireland intend to lay downward mandatory requirements of European Union police pull amongst which the national legislation of Member US must comply?
· Did the CJEU inward Digital Rights Republic of Ireland intend to expand the effect of Articles seven and/or 8, European Union Charter beyond the effect of Article 8 ECHR as established inward the jurisprudence of the ECtHR?
AG’s Opinion
Asking the incorrect question?
The AG initially dealt amongst the query regarding whether Digital Rights Ireland extended the range of Article seven and/or Article 8 of the CFR beyond that of Article 8 of the ECHR. The AG considered this query inadmissible (para seventy as well as 83) because that possibility was non straight relevant to the resolution of the electrical flow dispute (para 75). The AG admitted that the offset sentence of Article 52(3) (which lays downward rules of interpretation) of the CFR makes clear that whatever corresponding rights must endure the same inward important as well as range to that of the ECHR (para 77). But highlighted, the mo sentence of Article 52(3), tin permit CJEU to extend the range of the CFR beyond that of the ECHR (para 78). The ECHR has ever been a minimum benchmark as inward Trucl as well as Others v Slovenia it was noted that ‘rights guaranteed past times the Convention represented minimum standards’ (para 115). Thus if the European Union did acceded to the ECHR (and fifty-fifty if it did not), amongst or without the mo sentence Article 52(3), the CJEU would endure costless to extend the range CFR as it saw fit. Therefore inward understanding amongst the AG, the Court of Appeal asked the incorrect question.
Lack of corresponding correct agency rules of interpretation does non apply?
Another of import facial expression was pointed out past times the AG, who maintained that Article 8 of the CFR has no ECHR corresponding correct as well as hence the rules of interpretation set out inward the offset sentence of Article 52(3) does non apply (para 79). However, at that topographic point is effort for slight disagreement on this interpretation of Article 52(3). While the High Court admitted that protection of personal information barbarous within the ambit of Article 8 of the ECHR, they felt Article 8 of the CFR went beyond this because it was to a greater extent than specific as well as the ECHR had no counterpart (para 80). However, the High Court did so without genuinely considering Article 8 ECHR instance law, hence their conclusions did non seem to based on anything but mere conjecture as well as the wording of Article 8 CFR. This was also questioned past times Stalla-Bourdillon because it appeared the High Court followed this interpretation based on at that topographic point non beingness an ECHR counterpart. But on closer inspection, as Stalla-Bourdillon highlighted, at that topographic point is extensive Article 8 instance law on the protection of personal data, which is suggested, does inward fact correspond amongst Article 8 CFR. Therefore, both the High Court as well as AG has fallen prey to only considering the provisions of the ECHR as well as non the European Court of Human Rights’s (ECtHR) interpretation of those provisions, thus nitty-gritty over cast seemingly prevailed.
It is suggested because there is such extensive instance police pull on the protection of personal information inward lite of Article 8 ECHR, it is only correct that it should endure used as a guide when considering Article 8 CFR. Article 52(3) notes that ‘the meaning as well as scope of those rights shall endure the same as those set downward past times the said Convention.’ In PPU J McB v LE the CJEU held that non only does the rights gear upwards out inward ECHR are to correspond, but also the important given through the ECtHR’s jurisprudence (para 53) (see also). In Schecke the CJEU held that:
[T]he correct to honor for private life amongst regard to the processing of personal data, recognised past times Articles seven as well as 8 of the Charter, concerns whatever information relating to an identified or identifiable individual...and the limitations which may lawfully endure imposed on the correct to the protection of personal information correspond to those tolerated inward relation to Article 8 of the Convention.’(para 52).
It has been maintained that such an interpretation tin endure problematic because the CJEU has allowed Article 8 CFR to endure absorbed past times Article 7. However, this does non as well as would non weaken the opinion that Article 8 CFR as a standalone correct should endure interpreted (where possible) inward accordance amongst principles of information protection embedded within the ECtHR’s jurisprudence. Read as a whole, Article 52(3) would hence endure properly adhered to, as well as would also allow the CJEU to deviate, if demand be, to offering a higher measure of protection.
A full general obligation to retain:
The AG as well as so considered whether Article 15(1) of the Directive allowed Member US to impose a full general information retentiveness obligation (para 84) past times establishing whether such an obligation barbarous within the range of the Directive (para 86). The Czech, French, Polish as well as Great Britain Governments all contended that information retentiveness was excluded past times Article 1(3) (which excludes matters such as populace security, defence, State safety from the range of the Directive) (para 88). However, the AG rejected this past times highlighting that:
· Article 15(1) governed exactly that (retention of data) (para 90),
· Provisions of access falling within Article 1(3) does non prevent retentiveness from falling within Article 1(3) (para 92-94),
· The approach taken past times the CJEU inward Ireland v Parliament as well as Council meant that full general information obligations were non within the range of criminal police pull (para 95).
When it came to the number of whether the Directive applied the AG referred to the Member US ‘entitlement’ nether Article 15(1) i.e. Member US have got a choice (para 106). The AG as well as so referred to Recital eleven of the Directive which did non alter the residue betwixt an individual’s correct to privacy as well as the possibility of Member US to convey measures necessary for the protection of populace safety etc (para 107). Moreover, the AG highlighted that the Directive did non alter the powerfulness of Member US to send out lawful interception of electronic communications, or convey other measures, if necessary for whatever of these purposes as well as in accordance amongst the ECHR (para 107). The AG opined that full general information retentiveness obligations were consistent amongst the Directive as well as hence Member US were entitled to avail themselves of that possibility nether Article 15(1), land of report non only to its requirements, but that of the CFR inward lite of Digital Rights Ireland (para 116). Although the AG felt that full general obligations of information retentiveness were permissible nether European Union police pull (subject to restrictions), an avenue was created for testing the full general obligations itself nether the ECHR.
In accordance with the law? But does this non defeat the AG’s premise?
When the AG considered the requirement for legal ground inward national law, he invited that CJEU to confirm that the interpretation of ‘provided for past times law’ inward Article 52(1) CFR accorded amongst that of the ECtHR’s jurisprudence on a stair out beingness ‘in accordance amongst the law’(para 134-137). The AG highlighted that the ECtHR has developed a substantial trunk of jurisprudence on the affair which could endure summarised as follows:
· A legal ground that is adequately accessible as well as foreseeable i.e. the police pull is formulated amongst sufficient precision to enable the private — if demand endure amongst appropriate advice — to regulate their conduct,
· This legal ground must supply adequate protection against arbitrary interference, and
· Must define amongst sufficient clarity the range as well as mode of exercise of the powerfulness conferred on the competent authorities (para 139).
The AG was of the watch that ‘provided for past times law’ inward Article 52(1) CFR needs to endure the same as that ascribed to it inward connectedness amongst the ECHR (para 140). The AG’s reasoning was as follows:
· Article 53 CFR explains that its provisions must never endure inferior to what is guaranteed past times the ECHR as well as hence the CFR must at to the lowest degree be as stringent as the ECHR (para 141),
· It would endure inappropriate to impose different criteria on the Member US depending on which of those 2 instruments was nether consideration (para 142).
The AG felt that full general information retentiveness obligations must endure founded on a legal ground that is adequately accessible as well as foreseeable as well as provides adequate protection against arbitrary interference (para 143). This would solve the work of the CJEU falling into ‘the trap of tautologically regarding a legal norm, the validity of which is beingness questioned, as beingness allegedly inward accordance amongst the police pull because it is a law.’
This as well as so raises the interesting issue, if this is the preferred interpretation, how could a full general obligation to retain information not amount to arbitrary interference? The AG after admits that the disadvantage of this full general obligation arises ‘from the fact that the vast bulk of the information retained volition relate to persons who volition never endure connected inward whatever way amongst serious crime’ (para 252). If the vast bulk of information retained is of individuals who are unrelated to whatever serious crime, how could this fifty-fifty endure suggested to not endure arbitrary?
If inward draw amongst the ECtHR’s jurisprudence, that for a stair out to endure inward accordance amongst the law, a stair out must endure sufficiently precise so individuals tin regulate their conduct, how could this foursquare amongst full general obligations to retain information which occurs irrespective of conduct? The ECtHR’s Grand Chamber inward Zakharov v Russia maintained that the ‘automatic storage for 6 months of clearly irrelevant data cannot endure considered justified nether Article 8’ (para 255). As the AG indicated, most information retained volition have got no relation to the fighting against serious offense as well as therefore, inward draw amongst Zakharov, cannot endure justified nether Article 8. Member US would as well as so have got to justify why most information unrelated to serious offense is relevant to the fighting against serious crime. In stressing that Article 52(1) should reverberate the ECtHR’s jurisprudence the AG may have got undermined his ain seat when believing that full general obligations to retain information were permissible nether European Union police pull past times unleashing the ECHR inward damage of Recital eleven as well as the interpretation of ‘provided for past times law.’
Data retentiveness does non adversely touching on the essence of the right, or does it, or should it?
The AG listed 6 requirements a full general information retentiveness obligation must run into to endure justified, ane of such is that it ‘must notice the essence of the rights enshrined inward the Charter’ (para 132). The AG recalled that Article 52(1) CFR provides that whatever limitation to the rights enshrined must honor the essence of those rights as well as freedoms (para 155). The AG referred to para 39 of Digital Rights Republic of Ireland where the CJEU held that the DRD did non adversely touching on Article seven CFR since it did non permit the acquisition of noesis of the content of the electronic communications as such (para 156). The AG felt this also applied to the electrical flow instance (para 157) as well as this was as the instance for Article 8 CFR (paras 158-9) but ultimately left it for the CJEU to create upwards one's heed (para 160).
However, the AG after contradicts his ain watch when considering the disadvantages of information retention. The AG accepted that ‘a full general information retentiveness obligation volition facilitate equally serious interference as targeted surveillance measures, including those which intercept the content of communications’ (para 254). The AG stopped brusk of referring to information retentiveness as volume surveillance, but instead referred to it as volume interference (para 255) as well as that it affected a substantial portion, if non all of the relevant population (para 256). The AG fifty-fifty went farther past times describing amongst the instance of an private who access retained information (instead of analysing content) to covert out those within the Member State who have got a psychological disorder or whatever land specialist medicine (para 257). The AG continues, this same soul who sought to give away out who opposed authorities policies, could do so amongst the possibility of identifying individuals taking business office inward populace demonstrations against the authorities (para 258).
The AG agreed amongst the seat of several civil monastic tell groups, the Law Society as well as UN High Commissioner for Human Rights that the ‘risks associated amongst access to communications information (or ‘metadata’) may endure as bully or fifty-fifty greater than those arising from access to the content of communications’ (para 259). The AG farther added that the examples given demonstrate that ‘metadata’ tin facilitate ‘the almost instantaneous cataloguing of entire populations, something which the content of communications does not’ (para 259). The AG also added that at that topographic point is was cipher theoretical almost the risks of abuse or illegal access to retained information (based on the number of requests past times Swedish as well as UK authorities) as well as that such jeopardy of ‘illegal access on the business office of whatever person, is as substantial as the existence of computerised databases is extensive’ (para 260).
Considering the incredible item the AG went to depict the risks posed past times the retentiveness of data, it makes piffling feel to have got the watch that a full general information retentiveness obligation does non adversely touching on the essence of the right. The AG as well as CJEU inward Digital Rights Ireland premise of this was based on the thought that communications information would non permit acquisition of noesis of the content of the electronic communications. Yet the AG described inward bully item the amount of noesis that could endure gained from communications data. And it is this acquisition of noesis that is the of import factor, the AG described the instance of the powerfulness of gaining sensitive noesis without analysing the content. And so the AG, similar the CJEU has created an arbitrary distinction that although the same noesis tin endure gained from communications information or content, it is only access to content that could adversely touching on the essence of the right (para 94). If it is acknowledged that similar noesis tin endure gained from both measures, the CJEU as well as indeed the AG has non sufficient explained this differential treatment. Furthermore, past times only considering that access to content adversely affects the essence of the right, this would promote the usage of retentiveness as well as access to communications information to a greater flat which as the AG admits, tin supply far richer information than content.
Indiscriminate information retentiveness peradventure European Union compliant, but non ECHR compliant
The AG highlighted that the CJEU inward Digital Rights Ireland pointed out that the DRD covered all users as well as all traffic information without differentiation or limitation (para 197). The AG described what the CJEU considered the practical implications of the absence of differentiation i.e. concerning those amongst no link to serious crime, no human relationship betwixt retentiveness as well as threat to populace security, as well as no temporal, geographical as well as associate based restriction (para 198). The AG concluded that the CJEU did non handgrip that the absence of differentiation inward itself went beyond what was strictly necessary (para 199).
The AG justified this ane 4 grounds, firstly, the CJEU ruled the DRD as invalid because of the cumulative effects of generalised information retentiveness as well as the lack of safeguards which sought to boundary what strictly necessary for the interference amongst Article seven as well as 8 CFR (paras 201-202). Secondly, inward lite of Schrems (para 93) the AG inferred ane time to a greater extent than that only full general information retentiveness obligations accompanied past times sufficient safeguards would endure European Union police pull compatible (para 205). Thirdly, the AG felt national measures should endure scrutinised at a national level, where the national courts should rigorously verify whether full general information retentiveness obligations are the most effective at fighting serious offense i.e. whether at that topographic point are other less intrusive alternatives (paras 209-210). Fourthly, the AG agreed amongst the Estonian Government that limiting information retentiveness to a exceptional geographical expanse may effort a geographical shift inward criminal activity (para 214).
Considering indiscriminate information retentiveness as permissible nether European Union police pull if at that topographic point is a sufficiently robust safeguard machinery creates problems amongst the ECHR. In the instance of S as well as Marper v United Kingdom the number at manus was the retentiveness of finger impress as well as deoxyribonucleic acid records. In finding the retentiveness regime incompatible amongst Article 8 (para 126) the ECtHR was struck past times blanket as well as indiscriminate nature of the powerfulness because:
[119] material may endure retained irrespective of the nature or gravity of the offence amongst which the private was originally suspected or of the historic menses of the suspected offender...
[122] Of exceptional draw of piece of work organization inward the introduce context is the jeopardy of stigmatisation, stemming from the fact that persons inward the seat of the applicants, who have got non been convicted of whatever offence as well as are entitled to the presumption of innocence, are treated inward the same way as convicted persons...
[125] In conclusion, the Court finds that the blanket as well as indiscriminate nature of the powers of retentiveness of the fingerprints, cellular samples as well as deoxyribonucleic acid profiles of persons suspected but non convicted of offences, as applied inward the instance of the introduce applicants, fails to strike a fair balance betwixt the competing populace as well as private interests as well as that the respondent State has overstepped whatever acceptable margin of appreciation inward this regard. Accordingly, the retentiveness at number constitutes a disproportionate interference amongst the applicants’ correct to honor for private life as well as cannot endure regarded as necessary inward a democratic society. This conclusion obviates the demand for the Court to consider the applicants’ criticism regarding the adequacy of certainly exceptional safeguards, such as besides wide an access to the personal information concerned as well as insufficient protection against the misuse or abuse of such data.
S as well as Marper’s significance has been linked to information retention, as well as hence it is of import to apply the principles to the AG’s Opinion. The ECtHR criticised the UK regime for non distinguishing betwixt those who had been suspected as well as those who had committed offences. Regarding information retentiveness obligations, this indiscriminate powerfulness is to a greater extent than profound because suspicion would non endure a necessary ingredient for the justification of retention. As the AG highlighted, most information retained is of individuals who bare no relation to serious offense as well as hence creates number amongst the presumption of innocence to an unacceptable level. The most of import facial expression of the ECtHR’s reasoning inward S as well as Marper was that the retentiveness itself was opposite to the Convention without having to consider the safeguards that may have got been inward place. This is direct contrast amongst Digital Rights Republic of Ireland and the AG’s Opinion.
Regarding the 4th point, it is submitted that the Estonian Government as well as the AG misunderstood how information retentiveness as well as location information plant inward practice. It is non the physical expanse that is the of import factor, but the location of the device in query at a exceptional time. This was apparent inward Uzun v Germany when the ECtHR described Global Positioning System (GPS) as allowing ‘continuous location, without lapse of time, of objects equipped amongst a GPS receiver anywhere on earth, amongst a maximum tolerance of 50 metres at the time’ (para 12-13). This is all the to a greater extent than relevant as location information is becoming to a greater extent than as well as to a greater extent than sophisticated. Therefore applying a information retentiveness obligation inward a specific geographical expanse creates a simulated premise as the obligation on the service provider is to maintain tape of the location information of a device when it’s service is used (which volition dot where an private powerfulness be) irrespective of geographical area. Furthermore a targeted information retentiveness approach would non endure confined to a geographical as such, but to criminal activity (based on private usage of device as well as service) within a exceptional area.
Six months retentiveness is reasonable?
The number of retentiveness menses was also considered past times the AG (para 242) who felt that according to Zakharov a menses of 6 months would endure reasonable provided irrelevant information was at nowadays destroyed (para 243). However, past times making this connection, the AG created a simulated analogy of what the ECtHR held. Zakharov concerned judicially authorised interception as well as monitoring of communications information of individuals for 6 months (para 44-48). Therefore the analogy amongst targeted measures as well as that of full general information retentiveness begins to falter, as inward the AG’s ain words ‘metadata’ facilitates the almost instantaneous cataloguing of entire populations, something which the content of communications (via interception) does non (para 259).
Conclusion
Although most of the finer details, inward the Opinion of the AG should endure left to national courts (para 263) the number of information retentiveness as a challenge to telephone commutation rights persists. The AG, past times placing bully significance on the ECHR as well as the ECtHR’s jurisprudence unwittingly undermined only about of his ain key points because they do non accord amongst the ECHR. It is unlikely that the CJEU are going to dominion per se that a full general obligation to retain communications information is incompatible amongst European Union law, as well as hence peradventure an number for the ECtHR to create upwards one's heed themselves. In lite of S as well as Marper it is possible that the ECtHR would attain a ruling that is inward contrast to the CJEU. The UN General Assembly has affirmed that same rights that people have got offline must also endure protected online. The belatedly Caspar Bowden ane time described information retentiveness as akin to having CCTV within your head. And so the query becomes, would the AG/CJEU consider that CCTV within every dwelling theater would endure compatible amongst European Union police pull provided that access to that footage would endure circumscribed past times adequate safeguards?
Barnard & Peers: chapter 9
JHA4: chapter II:7
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