The Advocate General of the Court of Justice of the European Union has published his Opinion on data retention by EU member states. The subsequent judgment will have implications for the Data Retention and Investigatory Powers Act (DRIPA) and the Investigatory Powers Bill (IP BIll).
In today’s Opinion, the Advocate General said that data retention may be compatible with EU law only if data is being retained to fight serious crime and if there are strict safeguards in place. The Opinion confirmed that he believes that EU law should apply when it comes to data retention and that member states should limit their interference with our fundamental rights to what is strictly necessary.
Executive Director of Open Rights Group, Jim Killock responded:
“The Advocate General has stated that data retention should only be used in the fight against serious crime, yet in the UK there are more than half a million requests for communications data each year. These do not only come from police but also local councils and government departments. It is difficult to see how the Government can claim that these organisations are investigating serious crimes.
“The Opinion calls for strict safeguards yet in the UK, there is currently no judicial authorisation in the UK - police, local authorities and government departments can get internal sign off to access data. If the IP Bill is passed, data will be able to be analysed without a warrant through an intrusive tool known as the request filter.
“It may be too late to end data retention under DRIPA, which expires at the end of the year, but the Government has the opportunity to ensure that the IP Bill complies with EU law. In particular, they should end the extension of mass data retention proposed in the Bill, which would see the UK become one of the only democracies to record its citizens’ web browsing history and provide a police search engine to scour it.”
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Notes to Editor
The CJEU had been asked to clarify how its previous judgment in a case brought by Digital Rights Ireland (DRI) should be interpreted by member states. The DRI judgment led to the Data Retention Directive being declared invalid on the grounds that it seriously interfered with our fundamental rights to respect for private life and to the protection of personal data.
Subsequently, Open Rights Group intervened in a case against the UK government brought by Tom Watson MP and David Davis MP, arguing that the Data Retention and Investigatory Powers Act (DRIPA) breached EU law. The High Court ruled that parts of DRIPA were invalid. 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.
The CJEU Judgment in this case is likely to be issued in September.