CJEU hearing could find IPBill incompatible with EU law

The Court of Justice of the European Union (CJEU) will today hold an emergency hearing that could have implications for the Investigatory Powers Bill, which is currently passing through Parliament.

The CJEU has been asked to explain its April 2014 Judgment in a case brought by Digital Rights Ireland, which ruled blanket data retention severely interfered with rights to respect for private life and the protection of personal data. The Court also declared the Data Retention Directive invalid.

Open Rights Group’s Legal Director, Myles Jackman said:

“The Court found that you shouldn’t collect people’s data unless there is a specific reason and that there should be strict controls for allowing access to this data. With both DRIPA and the IPBill, the British government has ignored this call to respect our human rights.

We look forward to the CJEU’s clarification of their ruling and hope that it rejects once and for all the blanket collection of our personal data.”

ORG intervened in the case with Privacy International. Their Legal Officer Camilla Graham Wood said:

"The UK, in enacting legislation that is almost identical to the European Data Retention Directive which the CJEU ruled unlawful, is mandating data retention on a widespread, indiscriminate and untargeted basis. Such a broad and wholesale retention of communications data is in violation of European law.”

Data Retention and Investigatory Powers Act (DRIPA)

Three months after the Digital Rights Ireland Judgment, the British government fast-tracked the Data Retention and Investigatory Powers Act (DRIPA) through Parliament. This enabled the continued retention of personal communications data by Communications Service Providers in the UK.

DRIPA was challenged by the MPs David Davis and Tom Watson in a judicial review brought by Liberty with ORG and Privacy International acting as intervenors. The High Court ruled that DRIPA was inconsistent with EU law.

The ruling referred to two criteria laid down by the CJEU in the Digital Rights Ireland case:

1.   DRIPA did not provide clear and precise rules about access to and use of the retained communications data.
2.  Under DRIPA it is not a mandatory requirement for a court or an independent administrative body to authorise access to the retained data.

When the Government appealed the High Court’s decision, the Court of Appeal asked the CJEU court to explain how the DRI ruling should be applied in the UK.

Investigatory Powers Bill
The IPB would extend the data that is retained by Communication Service Providers to include Internet Connection Records, which have been broadly described as records of users’ browsing history. The CJEU previously said that data should not be retained without a specific reason.

The IPB would also continue to allow the police and government departments to authorise internally access to this data. This would fail to meet the criteria that independent courts or bodies should authorise access to data.

For more information, contact press@openrightsgroup.org