EU Data Directive Faces Tough Questioning at EU Court of Justice
Governments and the European Commission, Council and Parliament faced many critical questions at a European Court of Justice hearing Tuesday in Luxembourg on the possible violation of EU fundamental rights by the EU data retention directive. The 2006 directive obliges member countries to provide for telecom operators to retain communication traffic and mobile users’ location data.
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"The opponents have not yet won,” said Rena Tangens, co-founder of Digital Courage, an activist organization aimed at stopping the data retention directive. “But the extremely tough questions and harsh tone from judges today seem to be a good sign.” The case was referred to the court by the Austrian Constitutional Court and the Irish High Court. Complainants were more than 11,000 Austrians, the government of the Austrian state of Kaernten and the Irish nongovernmental activist organization Digital Rights Ireland.
"Would data retention be a good instrument to fight crime, we would by now have a lot of statistics about the success,” said Ewald Scheucher, attorney for the 11,000 Austrians. No statistics were given at the hearing about its effectiveness. “There is no scientific data,” acknowledged the U.K. government representative. But he said it was clear that without the retained traffic and location data, law enforcement would not be able to do its job. A representative of the EU Council of Ministers said “we cannot take away from law enforcement the instrument which enables them to do their work.” The Spanish government’s official said the Madrid bombings made it “clear that we had to store as much data as possible.” He agreed that the impact on fundamental rights becomes more serious the longer the data were stored, but said “as long as the data are not used, there is no violation of fundamental rights.”
European Court of Justice Judge Thomas von Danwitz of Germany questioned the proportionality, asking for much better data on the necessity and efficiency. In Austria, law enforcement requested 326 sets of stored traffic and location data between April 1, 2012, and March 31, 2013. In 56 of the 139 procedures closed so far, the information received from data retained by providers helped to solve the cases, none involving terrorism or major crimes. Von Danwitz also pointed to the reasoning of the commission and some of the member states which argued that the protection of fundamental rights was up to member states. He said the court must judge the directive itself and its compatibility with the European Charter of Fundamental Rights. Since 36 percent of the retained traffic data was collected in third countries, such as under a safe harbor agreement, and the data weren’t stored according to legal obligations, the “legality of the storage obligations in general” became questionable, said von Danwitz, the court’s rapporteur in the case.
The Advocate General will file its opinion on the case Nov. 7. The judgment could come three to six months after that, a court press officer told us.