Sunday, December 5, 2021

ECJ opinion data retention is illegal

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The German data retention is illegal. This is the conclusion of an expert at the European Court of Justice. A final judgment is expected in a few months.

An expert from the European Court of Justice put a severe damper on the data retention process, which had been put on hold in Germany, and strengthened the position of civil rights activists.

Advocate General Manuel Campos Sánchez-Bordona reiterated in his assessment of Thursday previous ECJ rulings that general and indiscriminate data retention is only allowed if there is a serious threat to national security.

The FDP MEP Moritz Körner spoke of the “final nail in the coffin for data retention” in Germany. “The indiscriminate mass storage of communication data will never be compatible with the right to confidentiality of electronic communication,” said Körner.

The background to the report is, among other things, a legal dispute between the Federal Network Agency and the Internet provider SpaceNet and Telekom. The companies are resisting a requirement to store certain data for access by the authorities.

The Federal Network Agency had already put the German regulation on hold in 2017 after the Higher Administrative Court in Münster ruled that SpaceNet should not be obliged to store the data. That was a few days before the new rule was supposed to come into force.

The so-called data retention is highly controversial: While security politicians see it as a central instrument in the fight against organized crime, child pornography and terrorism, civil rights activists and consumer advocates consider it an impermissible invasion of privacy.

At their summit in March, however, the EU states recently stated that law enforcement and judicial authorities needed data retention to combat serious crime.

In its communication on the German legal dispute and others in Ireland and France, the ECJ now became unusually clear: it was actually to be expected that the debate would have come to an end with a previous ECJ ruling. After all, it is so “that the answers to all the questions put can already be found in the case law of the Court of Justice or can easily be derived from it”.

With a view to German law, the Advocate General emphasized that the obligation to retain general and indiscriminate retention applies to a large number of traffic and location data. The time limit for data retention does not change this either, since the data must be stored selectively.

The general storage of data is associated with a serious risk. The Advocate General also recalls that, in any case, access to the data constitutes a serious interference with fundamental rights to family and private life and the protection of personal data.

The opinion of Sánchez-Bordona is not binding for the ECJ judges, but they often orientate themselves on it. A judgment on the German regulation should be made in a few months.

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