Data Retention Directive

The Data Retention Directive, more formally "Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC" was a Directive issued by the European Union and related to telecommunications data retention. According to the directive, member states will have to store citizens' telecommunications data for a minimum of 6 months and at most 24 months. Under the directive the police and security agencies will be able to request access to details such as IP address and time of use of every email, phone call and text message sent or received. A permission to access the information will be granted only by a court. On 8 April 2014, the Court of Justice of the European Union declared the Directive invalid in response to a case brought by Digital Rights Ireland against the Irish authorities and others.^[1][2][3]

History

In September 2005, during the United Kingdom's presidency of the European Council, a plenary session was held concerning the retention of telecommunications data, chaired by the UK's Home Secretary.^[4] This led to an agreement reached by the Council at its meeting on the 1st and 2nd of December that was then adopted in March 2006, under the Austrian presidency.^[5]

Implementation

Romania

The EU directive has been transposed into Romanian law as well, initially as Law 298/2008.^[6] However, the Constitutional Court of Romania (CCR) subsequently struck down the law in 2009 as violating constitutional rights.^[7] The court held that the transposing act violated the constitutional rights of privacy, of confidentiality in communications, and of free speech.^[8] The European Commission has subsequently sued Romania in 2011 for non-implementation, threatening Romania with a fine of 30,000 euros per day.^[9] The Romanian parliament passed a new law in 2012, which was signed by president Traian Băsescu in June.^[10] The Law 82/2012 has been nicknamed "the Big Brother law" (using the untranslated English expression) by various Romanian non-governmental organizations opposing it, as well as the Romanian media.^[9][11][12] On July 8th 2014 this law too was declared unconstitutional by the CCR.^[13]

Criticism

The Data Retention Directive has sparked serious concerns from physicians, journalists, privacy and human rights groups, unions, IT security firms and legal experts.^[14]

Annullment

On 8 April 2014, the Court of Justice of the European Union declared the Directive 2006/24/EC invalid for violating fundamental rights. The Council's Legal Services have been reported to have stated in closed session that paragraph 59 of the European Court of Justice's ruling "suggests that general and blanket data retention is no longer possible".^[15] A legal opinion funded by the Greens/EFA Group in the European Parliament finds that the blanket retention data of unsuspicious persons generally violates the EU Charter of Fundamental Rights, both in regard to national telecommunications data retention laws and to similar EU data retention schemes (Passenger name records, Terrorist Finance Tracking Programme, Terrorist Finance Tracking System, law enforcement access to the Entry-Exit-System, Eurodac, Visa Information System).^[16]

See also

• Data Protection Directive
• Written declaration 29, an adopted proposition signed by Anna Záborská and Tiziano Motti to extend the Data Retention Directive to monitor search engine traffic
• Telecommunications data retention

Further reading

• The Court of Justice of the European Communities: Action brought on 6 July 2006 — Ireland v Council of the European Union, European Parliament
• Arnbak, Axel (2013), "The Politics of the EU Court Data Retention Opinion: End to Mass Surveillance?", Freedom to Tinker .
• Bignami, Francesca (2007), "Privacy and Law Enforcement in the European Union: The Data Retention Directive", Chicago Journal of International Law, 8 (1): 233–256 .
• Breyer, Patrick (2005), "Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR", European Law Journal, 11 (3): 365–375, doi:10.1111/j.1468-0386.2005.00264.x .
• Stampfel, Gerald; Gansterer, Wilfried; Ilger, Michael (2008), Data Retention - The EU Directive 2006/24/EC from a Technological Perspective, Wien: Medien und Recht, ISBN 3-900741-53-0 .
• de Vries, Bellanova, de Hert, Gutwirth: The German Constitutional Court Judgement on Data Retention
• Feiler, Lukas (2010), "The Legality of the Data Retention Directive in Light of the Fundamental Rights to Privacy and Data Protection", European Journal of Law and Technology, 1 (3) .

References

External links

• Text of the directive and national provisions on data retention communicated by the member states. (HTML and PDF)
• Overview of implementation in the EU
• Arnbak, A.: The Politics of the EU Court Data Retention Opinion: End to Mass Surveillance?. Freedom to Tinker, December 2013.
• Breyer, P.: "Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR". European Law Journal, May 2005. (PDF-File, 82 KB)
• Centre for European Policy Studies (CEP): Policy Brief on Data Retention (2011]. (PDF-File)
• Crump, C.: Data retention: privacy, anonymity, and accountability online (2003). 56 Stanford Law Review 191-229. (PDF-File)
• European Digital Rights: EDRI news tracking page on data retention (current)
• Feiler, L.: The Data Retention Directive (2008). Seminar paper. (PDF-File)
• Ganj, C.: The Lives of Other Judges: Effects of the Romanian Data Retention Judgment (December 4, 2009). (PDF-File)
• Goemans, C. and Dumortier, J.: "Mandatory retention of traffic data in the EU: possible impact on privacy and on-line anonymity. Digital Anonymity and the Law, series IT & Law/2, T.M.C. Asser Press, 2003, p 161-183. (PDF-File)
• Kosta, E.: “The Way to Luxemburg: National Court Decisions on the Compatibility of the Data Retention Directive with the Rights to Privacy and Data Protection”, (2013) 10:3 SCRIPTed 339 (PDF-File)
• Milford, P.: "The Data Retention Directive: too fast, too furious a response? (2008). LLM Dissertation – Southampton Business School. (PDF-File)
• Mitrou, L.: "Communications Data Retention: A Pandora’s Box for Rights and Liberties?" From Digital Privacy: Theory, Technologies, and Practices edited by Alessandro Acquisti, Stefanos Gritzalis, Costos Lambrinoudakis and Sabrina di Vimercati. Auerbach Publications, 2008. (PDF-File)
• Morariu, M.: "How Secure is to Remain Private? On the Controversies of the European Data Retention Directive" (2009). Amsterdam Social Science, Vol. 1(2): p. 46-65. (PDF-File)
• Statewatch: The surveillance of telecommunications in the EU.
• Walker, C., & Akdeniz, Y.: "Anti-Terrorism laws and data retention: war is over?". Northern Ireland Legal Quarterly, 54(2), Summer edition 2003, 159-182. (PDF-File, 97 KB)
• Working Group on Data Retention: List of documents relating to communications data retention in the EU (current)