Wednesday, January 16, 2019

EU member states attempt to circumvent CJEU rulings on data retention

One of the things the UK government is going to miss desperately, once Brexit deal is done, is the monumental amount of policy washing they have been able to drive though the EU in the past four plus decades. Not that this will prevent future UK governments from blaming the EU for whatever their prevailing set of woes happens to be.

Case in point.

The Court of  Justice of the EU has repeatedly ruled that blanket data retention is a breach of the  Charter of Fundamental rights of the EU, most notably in the Digital Rights Ireland case in April 2014 and the Tele2 case in December 2016.

Ever since, EU member state governments and various branches of EU institutions have been furiously trying to find ways to circumvent the Court's judgments and continue and expand data retention practices. They are very happy, thank you very much, with their current illegal data retention regimes.

The contortionist wordplay at large in some of the forums considering the issue is bordering on awe inspiring.

The current great hope of those working to maintain, enhance and expand data retention practices is that the planned new e-Privacy directive can be constructed in such a way as to pretend that data retention is not really data retention. In diplomatese they are working towards a more “favourable” environment for data retention than the current ePrivacy Directive of 2002. Article 15(1) of that directive when read in conjunction with the EU Charter of Fundamental Rights, rather irritatingly, for its supporters and according to the CJEU, prohibits blanket data retention. It requires data retention to be
"a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system"
Thank you to the excellent crew at EDRi for the update on the ongoing shenanigans on this today.

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