European Court of Justice annuls 2006 data retention directive

On Tuesday, 8 April, 2014, the Court of Justice of the European Union, (also known as the European Court of Justice) in a scathing indictment of widespread mass surveillance practices, abolished the 2006 EU data retention directive. The Court said the directive was a serious and unjustified interference with the fundamental right to privacy enshrined in Article 7 of the EU Charter of Fundamental Rights.

The directive constituted such a serious interference with the fundamental right to privacy that it had to be annulled - it was an affront to liberty that should never have existed.

TJ McIntyre of Digital Rights Ireland (DRI), the heroic litigants in chief, has made a copy of the full decision available at scribd and it will appear on the Court website in due course. Credit also to the 11,130 Austrian citizens whose case was joined to that of DRI since they had challenged the directive on similar grounds.

For the uninitiated, the data retention directive was the instrument through which the EU required communications service providers, both fixed line and mobile, to store details of everything everyone does on the telephone or internet; for a period of between 6 months and two years. The details of what should be collected are laid out in article 5 of the directive and the only thing not allowed was recording of the content of calls or messages.

It's actually worth spending 5 or 10 minutes looking at that list of things in Article 5 that has been gathered by communications service providers throughout the EU. At first pass it seems a bit legalistic but if you cut through that and think about it – names, addresses, who spoke to whom, where, when, for how long, on what device, how often, websites visited etc. etc. This all paints a very detailed picture and most people don’t know it is going on. The who, where, why, how, what and when of individual lives is all there in this metadata.

With what may be interpreted as half and eye on the Edward Snowden revelations, the Grand Chamber of the Court, effectively condemned pre-emptive, suspicionless, warrantless mass surveillance and consequent "interference with the fundamental rights of practically the entire European population". The case is the first major court decision on mass surveillance since the Snowden stories started to break in June 2013. Though high courts in Romania (2009), Germany (2010), Bulgaria (2010),  the Czech Republic (2011) and Cyprus (2011) have all declared the data retention directive unconstitutional and/or a disproportionate unjustified interference with the fundamental right to privacy, free speech and confidentiality of communications. As recently as 2011 following the national courts' striking down of regulations implementing data retention, the European Commission were hounding Germany and Romania to re-implement the directive. The Commission subsequently sued Romania which went on to pass a widely criticised version of data retention law in 2012, nicknamed "Big Brother". The Commission had also previously sued Greece, the Netherlands, Austria and Sweden for failing to implement the directive by the due date of September 15 2007.

The previous UK Labour government were one of the key driving forces behind the original implementation of the the data retention directive. The current UK government is one of the biggest cheerleaders for and operators of mass surveillance standards and practices. Though the UK government was not involved directly in the case, (and are scrambling madly to find a way to circumvent the decision as, sadly, are the Commission), both the current and the previous administrations' behavior, in the data retention context, is considered so heinous in law that it should never have happened; and the laws facilitating that behavior should never have existed.

Some commentators have also suggested the Court was firing a message not just to the UK but across the pond (2 min 40sec audio) to the effect that US mass surveillance standards are totally unacceptable in an EU context.

I have now managed to read the decision in full (in fits and starts) and will endeavour to post an analysis here at the earliest opportunity. (Aka when grown up admin duties allow and I can construct a sufficiently robust buffer between me and the zombiecrats to take a sustained run at it).