European legislation that came into force today requires internet service providers to retain details of user's emails, net phone calls and other web traffic. This requirement, imposed on all all EU states, is a serious erosion of our fundamental human right to privacy.
Privacy is recognised by European and British courts as a matter of right. The European Human Rights Convention states quite clearly that we have a right to a private life and correspondence, and the European Court of Human Rights has stated that traffic data is ‘an integral element in the communications made'.
In a recent, failed challenge to the legitimacy of the Data Retention Directive, Open Rights Group and over forty other human rights and privacy organisations argued for the incompatibility of this directive with human rights law. The core of this argument is shown below. Although the court rejected the case, they left the gates open for future action on the grounds of breach of human rights. We may yet see this from Germany, where a challenge is taking place. There is also concern in Sweden, where the Directive has not been implemented,
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[R]etaining traffic data creates potential risks of abuse by state agencies. Traffic data can be extremely useful for political control, eg by intelligence agencies. Experience shows that the risk of powers being abused, especially where they are exercised in secret, must not be underestimated even in Europe.
[W]here the government prevents the effective protection of personal data because of its appetite for surveillance, it opens up the gates for misuse of the data by third parties. Innumerable facts about the private life of prominent members of the public could be obtained by analysing traffic data. In the event of unauthorised access to retained traffic data, politicians could be forced to resign and officials could be blackmailed.
Where data retention takes place, citizens constantly need to fear that their communications data may at some point lead to false incrimination or governmental or private abuse of the data. Because of this, traffic data retention endangers open communication in the whole of society. Individuals who have reasons to fear that their communications could be used against them in the future will endeavour to behave as unsuspiciously as possible or, in some cases, choose to abstain from communicating altogether. Such behaviour is detrimental to a democratic state that is based on the active and unprejudiced involvement of citizens. This chilling effect is especially harmful in cases which attract abuses of power, namely in the case of organisations and individuals who are critical of the government or even the political system. Blanket traffic data retention can ultimately lead to restricted political activity, bringing about damage to the operation of our democratic states and thus to society.
Traffic data retention also causes increased efforts in the development of countermeasures such as technologies of anonymisation. Where the state indirectly encourages anonymous communications in its pursuit of surveillance, it will ultimately damage its power to intercept telecommunications even in cases of great danger.