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December 11, 2013 | Peter Bradwell

Important opinion about data retention due tomorrow

Tomorrow we're expecting an opinion about the 'Data Retention Directive'. It's a significant moment in the debate about laws that define the limits of digital surveillance.


Update: The opinion has now been published, with the Advocate General arguing that the Directive breaches the Charter of Fundamental Rights. Read our new post for more on what he said.

The Directive is a European law that allows governments to require companies to collect information about our communications and then make it available to law enforcement.

The case we'll hear about tomorrow concerns whether this law conflicts with the rights to private life (Article 7) and the protection of personal information (Article 8) set out in the Charter of Fundamental Rights of the European Union.

The opinion due tomorrow will come from an "Advocate General" at the Court of Justice of the European Union. Their job is to provide a legal opinions regarding cases before the court, which the judges involved have to take into account.

Who is involved?

The case is a combination of two complaints, one brought in Ireland by Digital Rights Ireland and another in Austria by a group including AK Vorrat Austria and an individual Austrian citizen. The Court decided to hear these two together.

There was a hearing on 9th July during which the parties who brought the complaints gave evidence, as did the European institutions (Commission, Parliament and Council) and the European Data Protection Supervisor.

What are the main issues?

The parties are arguing that the Data Retention Directive is incompatible with the Charter of Fundamental Rights. Basically, the question is whether governments can require communications providers to collect store communications information about all of us and for law enforcement to be able to access this data.

If legislation conflicts with our rights, the Court has established that the measures need to be necessary and must strike a proportionate balance. So the Court asked about how the law might interfere with articles 7 and 8; what objective evidence the European Union used when deciding that the Directive was necessary; whether the Union achieved a balance in this case; and about the provisions relating to the security of the data involved.

In their arguments in the hearing in July, the parties said that there is no evidence that the retention powers set out in the Directive are a necessary and proportionate method of tackling crime and terrorism, and that the data has been used for investigating crimes for which the Directive was not intended. You can read more about what was said at the hearing in the summary by EDRi.

ORG has also campaigned against Data Retention, and we co-signed a letter in 2010 to the European Commission which goes through some of the reasons why. 

Statewatch also recently produced a report on the effectiveness of Data Retention. The report describes how the Directive became law, how countries in Europe implemented it, and describes the various legal challenges that Data Retention is facing.

What happens next?

The Advocate General opinion is not the final result from the Court - it's effectively a guide for the judges. They do give a good indication of what the final judgment will look like. So this is an important intervention.

We'll bring you news of the opinion when we hear it tomorrow.

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